Handbooks Index

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Criminal handbook

Part 3: Carrying out criminal legal assistance


Chapter 18

Change of solicitor in criminal cases

18.1 Nominated solicitor ceasing to act for assisted person
18.2 Assisted person dispensing with services of nominated solicitor
18.3 Assisted person wanting another solicitor to act
18.4 General
18.5 The Board's approach to the "good reason" test
18.6 Good reasons for a transfer of agency
18.7 Circumstances likely to constitute good reason to nominate another solicitor
18.8 Circumstances not likely to constitute good reason to nominate another solicitor unless exceptional factors are shown to exist
18.9 Effective date of any transfer
18.10 Turnaround time for applications for change of solicitor
18.11 Notification of decision on application
18.12 Requests for reconsideration

 

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Unless otherwise stated, "the Act" or "the 1986 Act" means the Legal Aid (Scotland) Act 1986, and “the regulations” means the Advice and Assistance (Scotland) Regulations 1996

 

18.1 Nominated solicitor ceasing to act for assisted person

You can stop acting for an accused receiving criminal legal aid at any time. If you decide to do so, under regulation 17(1) you must

  • tell the assisted person, and
  • complete a cease to act application online, including the reasons why you have decided no longer to act for the accused.

When we receive the online application, depending on the reasons given, we may consider whether to terminate criminal legal aid under regulation 18.

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18.2 Assisted person dispensing with services of nominated solicitor

An assisted person may dispense with your services. If so, you must, in accordance with regulation 17(2), apply for a cease to act application online, including a note of the circumstances, so far as you know them, in which you were asked to cease acting.

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18.3 Assisted person wanting another solicitor to act

18.4 General

Under regulation 17(3), if an assisted person wants a solicitor other than the solicitor presently nominated to act for them, only the Board can authorise this. An assisted person cannot appoint another solicitor to act for them under legal aid.

The incoming solicitor will normally apply to us on the assisted person’s behalf for a transfer of agency through legal aid online. You must apply through legal aid online – we cannot accept requests made by letter or telephone. The client must sign the online transfer declaration form.

The incoming solicitor must

  • sign the online declaration form and
  • Send a copy of the online transfer declaration form to the existing nominated solicitor.

It is your responsibility, when you ask for a transfer of criminal legal aid, to send the originally instructed solicitor a copy of the transfer declaration form. If you do not know the name of the originally instructed solicitor, or the legal aid reference number for the case, please contact us with the PF reference number, and we can then give you the name of the first solicitor and the reference number.

The existing nominated solicitor can continue to act to preserve their client’s position until we decide on the transfer. Until we agree to the transfer, they continue to have full responsibility for the conduct of the case (unless they tell us, or have already told us, they have stopped acting for the assisted person).

The applicant must sign the online declaration this, to confirm they have read and agree with the reasons given for seeking a transfer of legal aid. The client is also agreeing to a copy of this form being given to the existing nominated solicitor. If we agree to the transfer, the client is instructing the transfer of the case papers to the incoming solicitor.

NOTE Paragraph 18.4 was expanded in November 2010.

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18.5 The Board's approach to the "good reason" test

Where the accused receiving criminal legal aid applies for authority to nominate another specified solicitor to act, we must be satisfied there is good reason for this. We must be satisfied both

  • there is good reason to nominate another solicitor, and
  • there is good reason to nominate the specified solicitor.

Even if we are satisfied that there is good reason to nominate another solicitor, we will refuse the transfer application if we are not satisfied that there is good reason to nominate the specified solicitor. We will take into account the location of the specified solicitor’s place of business in relation to the location of the court or the assisted person’s address.

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18.6 Good reasons for a transfer of agency

We set out below a general indication of circumstances we may, or may not, regard as constituting good reason for authorising another specified solicitor to act for the assisted person in accordance with regulation 17(3). However, you should not regard these as exhaustive, since they are only a general indication of our approach. We will not necessarily allow a transfer if one of the circumstances set out in paragraph 18.7 below applies, or refuse a transfer if those in paragraph 18.8 apply. We will consider each application for transfer on its own individual merits on the basis of the information available and having regard to the requirements set out in regulation 17(3).

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18.7 Circumstances likely to constitute good reason to nominate another solicitor

(a) The ill health, incapacity or death of the nominated solicitor.

(b) The retiral from practice, or from criminal practice, of the nominated solicitor.

(c) The suspension of the solicitor’s practising certificate, including voluntary suspension with a view to acceptance of a call to the Bar.

(d) Where all legal aid carried out in a firm had to be carried out in the name of one solicitor, and the solicitor actually responsible for the case is now to become nominated solicitor, either because they have changed firms, or the firm has changed its requirements.

(e) The assisted person has moved to a different district and no longer finds it convenient to visit the solicitor’s office. The alternative – the solicitor visiting the assisted person at home – may be contrary to Article 8 of the Law Society’s Code of Conduct for Criminal Work.

(f) Where the assisted person can no longer afford to travel to the solicitor’s office because of a change in their financial circumstances. The alternative – the solicitor visiting the assisted person at home – may be contrary to Article 8 of the Code of Conduct for Criminal Work.

(g) The nominated solicitor’s place of business is some distance from the assisted person’s home or from the court concerned, making communication with the assisted person difficult and leading to excessive charges against the Legal Aid Fund for travelling.

(h) Where the duty solicitor applied for legal aid as a service to the accused. However, if the duty solicitor proceeded to prepare the case as nominated solicitor, we will need further explanation to demonstrate good reason.

(i) A conflict of interest between the assisted person and a co-accused. In this situation, the transfer should be to a solicitor in some other firm. If the nominated solicitor is to recommend another solicitor, that other solicitor must be in the same sheriffdom as the accused.

(j) A conflict of interest arising from an existing professional or personal relationship between the nominated solicitor (or a partner, associate or assistant) and the complainer, Crown witness or trial judge. In this situation, the transfer should be to a solicitor in another firm.

(k) A breakdown in the solicitor/client relationship due to perceived inadequate professional services (whether in the present case or in another case involving the same accused and solicitor). Specific material failures must be identified, such as failures to attend court; apply for bail; keep appointments; respond to correspondence or telephone calls; or keep the accused advised of material developments affecting the case.

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18.8 Circumstances not likely to constitute good reason to nominate another solicitor unless exceptional factors are shown to exist

(a) The solicitor refuses to carry out the client’s unreasonable instructions. The solicitor is responsible for the conduct of the defence and is not obliged to act on instructions which, in their professional judgement, are

  • unlawful or improper or contravene any professional rule of guidance
  • likely to conflict with their duty to the court, or
  • prejudicial to the accused’s interest.

They should, however, carefully explain to the client why they cannot act on those instructions.

(b) The solicitor the accused wishes to nominate is the "family solicitor" or is already acting for a family member or friend in some other case.

(c) The solicitor the accused wishes to nominate is already acting for the accused in another case or cases. However, this may be a good reason where it is intended to have a number of outstanding complaints against the accused disposed of at the same time; or where the other case is closely linked with the present case, for example, a civil interdict arising out of the same incident.

(d) The accused has already dispensed with the services of the nominated solicitor. This situation will be dealt with as though the solicitor whose services have been dispensed with was still the nominated solicitor. The circumstances in which the accused instructed the previous solicitor to cease acting must demonstrate good reason for the nomination of a second solicitor.

(e) Where it appears that the nomination of the solicitor seeking the transfer will be likely to breach the Code of Conduct for Criminal Work or any professional rule. For example, if the solicitor seeking the transfer is already acting for a co-accused in the same case, accepting instructions from the accused will create a conflict of interest situation, contrary to Article 2 of the Code of Conduct. Where the circumstances would amount to a prima facie breach of the Code, the solicitor should explain why they nonetheless consider it is in order for them to act.

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18.9 Effective date of any transfer

The effective date of any approved transfer will be when we grant the application for a change of solicitor. We will not accept any work done by the incoming solicitor before that date as a valid charge under the grant of criminal legal aid. (Some of the work, for example, work concerned with securing a transfer of agency, may be chargeable under advice and assistance.) The previous nominated solicitor will be entitled to charge for

  • work done until notified of the transfer
  • any further urgent work necessary for the protection of the immediate interests of the accused or for the discharge of their duty to the court.

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18.10 Turnaround time for applications for change of solicitor

Our target turnaround time for dealing with applications for change of solicitor is three working days. Where it is made clear that an application must be dealt with urgently (for example, an imminent intermediate diet or trial diet), we will make special arrangements to deal with it more quickly.

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18.11 Notification of decision on application

We will write to the present nominated solicitor and the solicitor seeking the transfer, informing them of our decision on an application for transfer. In urgent cases, we will telephone both solicitors.

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18.12 Requests for reconsideration

There is no formal right of review of refusal of an application for a change of solicitor, but on cause shown we will usually be willing to reconsider the decision, provided the case has not already been concluded.

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