Definition of “appointed solicitor” and principal criteria for acting

An “appointed solicitor” is a solicitor who:

• is instructed directly by the accused; and
• has (or has had) a solicitor and client relationship with the accused that is demonstrable, to the satisfaction of the Board, by reference to circumstances apart from those relating solely to the appearance, or is connected with a firm and another solicitor connected with that firm has (or has had) such a relationship with the accused.

The previous relationship with your client cannot relate to earlier dealings with the client on the same matter on which you are taking instructions.

You have to be available immediately at court to represent the accused person [regulation 7(2) of The Criminal Legal Assistance (Duty Solicitors) (Scotland) Regulations 2011] or the representation reverts to the duty solicitor.

You must take instructions directly from the client and be able to act immediately in person at the pleading diet when the accused person first appears from custody in answer to a complaint. You cannot be in a position to act immediately in person where, for example, you take instructions in circumstances where it would not be practicable to represent the client at a distant court.

You can only provide ABWOR if you have personally taken instructions from the client about the case and you then appear personally at the pleading diet to represent the client, or through the services of another solicitor in certain prescribed circumstances. You cannot use the services of the duty solicitor. In the event that you are not available immediately, the representation falls back on the duty solicitor acting as duty solicitor.

You can only use the services of another solicitor if the circumstances fall clearly within the exceptions listed by regulation [7(5) (b) of The Criminal Legal Assistance (Duty Solicitors) (Scotland) Regulations 2011] where you cannot attend due to illness or incapacity, where an unforeseen professional obligation to act in another case arises or another good reason.

Beyond the appearance from custody, you are entitled to entrust any future appearance in the proceedings to another solicitor in the usual way.

The Legal Aid and Advice and Assistance (Miscellaneous Amendment) (Scotland) (No. 2) Regulations 2022 came into force on 1 October 2022, and removed the restriction on delegating the first custody appearance to the Duty Solicitor.  As a result of this, we also consider that delegation of a custody appearance by an appointed solicitor to a solicitor outside the appointed solicitor’s firm is a “good reason” for delegation of the custody appearance, where the appointed solicitor has taken the client’s initial instructions.

This is in addition to the existing ability to delegate the appearance to another solicitor in the firm and will reduce the need for solicitors to attend court personally at this time.

Therefore, you can provide ABWOR where:

• you meet the pre-existing relationship criteria for appointed solicitor
• your client is eligible
• you take instructions and grant ABWOR but want to delegate the appearance to another solicitor or to the duty solicitor.

You should submit the ABWOR application online and select “another good reason” for being unable to act immediately. If you enter “Delegating appearance” in the free text box, we will accept the application on that basis.

Where you elect to instruct the solicitor who is the duty solicitor in these circumstances, they are instructed as a local court agent, not as duty agent and will not be entitled to make any claim under the duty arrangements. You are responsible for the negotiation and payment of a local agent’s fee. This is not a charge that may be passed on as an outlay in your ABWOR account: the work is part of the overall work in the case covered by the fixed payment.

To act as an appointed solicitor you, or another solicitor from your firm, must have (or have had) a previous solicitor/client relationship. This relationship is not restricted to previous dealings in connection with a criminal matter. If there is a prior solicitor and client relationship, you may be able to act as appointed solicitor for a first offender.  This may arise where you have acted for the client in other matters such as civil proceedings, or perhaps advice in connection with children’s hearings issues – in these circumstances a solicitor/client relationship does exist, and you can provide ABWOR as the appointed solicitor.

It has to be vouched, however, in that it has to be demonstrable to our satisfaction.

If you or another solicitor from your firm has had no dealings with the client before this case, you cannot provide ABWOR.  The only form of representation that the client can receive would be through the duty solicitor, although you could provide advice and assistance if appropriate.

Our position on a prior solicitor/client relationship is based on the discussion in Law, Practice & Conduct for Solicitors by Alan Paterson/Bruce Ritchie Chapter 4 (Taking instructions).

“…it would appear that in terms of professional ethics the client/lawyer relationship…is formed when the lawyer expressly or impliedly agrees to act as the lawyer for the client.”

“… for more than a century [the legal relationship] has been regarded as a contract for services rooted in the law of agency”.

Reference is made by the authors to the words of Lord Justice Clerk Inglis in the case of Bell v Ogilvie 2 M 336.

In view of the requirements as to an earlier agreement to act and indeed the existence of an earlier contract, we do not accept that such a relationship exists where the basis of the client calling on your services was by word of mouth or some general recommendation made by a third party.