https://www.slab.org.uk/guidance/employment-and-definition-of-counsel/
https://www.slab.org.uk/guidance/employment-and-definition-of-counsel/
The employment of junior counsel is automatic but agents must obtain our approval for the employment of senior counsel or of more than one junior counsel.
Where you are instructed in the Court of Session both advocates and solicitor advocates can be paid as counsel.
Solicitors must obtain our approval for the employment of counsel in the sheriff court (including Sheriff Appeal Court).
If you are a solicitor advocate it is important that you are aware that there is no provision to instruct a solicitor advocate in any proceedings in the sheriff court.
In the sheriff court counsel must be a member of the Faculty of Advocates.
In the Sheriff Appeal Court, a solicitor advocate can be paid as counsel but only where we have authorised the employment of counsel under regulation 21(1)(ca) of the Civil Legal Aid (Scotland) Regulations 2002.
Solicitors must obtain our approval for the employment of counsel in the sheriff court (including Sheriff Appeal Court).
If you are a solicitor advocate it is important that you are aware that there is no provision to instruct a solicitor advocate in any proceedings in the sheriff court.
In the sheriff court counsel must be a member of the Faculty of Advocates.
In the Sheriff Appeal Court, a solicitor advocate can be paid as counsel but only where we have authorised the employment of counsel.
An application can be made for retrospective approval for the employment of counsel where that employment or work would have been approved had it been applied for timeously and there was a special reason why prior approval was not applied for.
You should refer to the Applications guidance for more information.
For the purposes of the fees regulations and this guidance a reference to “counsel” includes a “solicitor-advocate” subject to the following:
Regulation 2(1) of the Civil Fees Regulations provides the following definitions:
“counsel” includes a solicitor-advocate, except in regulation 10(2) and Schedule 2;
A solicitor-advocate cannot be paid as counsel under regulation 10(2) for proceedings in the following courts:
“right of audience” means, in relation to a solicitor, a right of audience in the Court of Session and the Supreme Court which a solicitor has by virtue of section 25A (rights of audience in specified courts) of the Solicitors (Scotland) Act 1980;
Where a solicitor-advocate is acting in the Court of Session or the Supreme Court you may pay them as counsel.
“solicitor-advocate” means a solicitor having a right of audience, whether instructed by another solicitor or not, when and only when—
that solicitor is exercising that right of audience or acting in connection with the exercise of that right; or
Where a solicitor-advocate instructed in the Sheriff Court we cannot make payment as counsel.
(b) in relation to proceedings in the Sheriff Appeal Court —
(i) the Board has authorised the employment of counsel under regulation 21(1)(ca) of the Civil Legal Aid (Scotland) Regulations 2002; and
(ii) that solicitor would have been exercising that right of audience, or acting in connection with the exercise of that right, had the proceedings taken place in a court to which section 25A of the Solicitors (Scotland) Act 1980 applied;
and, unless the context otherwise requires, any reference in these Regulations to a solicitor shall not include a solicitor when acting as a solicitor-advocate.
Where a solicitor-advocate is acting in the Sheriff Appeal Court under civil legal aid you can be paid as counsel but only where prior approval has been authorised in terms of regulation 21(1)(ca) of the Civil Legal Aid (Scotland) Regulations 2002.
Where a solicitor-advocate is acting in the Sheriff Appeal Court under children’s legal aid you can be paid as counsel but only where prior approval has been authorised for the employment of counsel.