Factors to consider when preparing your account

In terms of regulation 4(2) of the Criminal Fees Regulations, where a nominated solicitor represents two or more persons charged in the same indictment or complaint, or appealing against conviction or sentence in respect of the same indictment or complaint he shall submit one account in respect of all those persons.

In terms of regulation 4(3) of the Criminal Fees Regulations, accounts submitted in respect of criminal legal aid where a nominated solicitor requires another solicitor, whether an Edinburgh solicitor in connection with an appeal or on a remit for sentence, or a solicitor at the place of the prison or the court, or a local solicitor for the purpose of local precognitions or inquiry:

• only one account shall be submitted by the nominated solicitor (payment of the other solicitor being a matter for adjustment between the nominated solicitor and the other solicitor out of the fees payable hereunder); and
• in determining the sum to be allowed to the nominated solicitor account shall be taken also of the work carried out by that other solicitor.

You may only charge for work activities that have been properly incurred and fall within the scope of legal aid which has been made available.

It is important, especially when your client may have multiple cases covered by distinct grants of legal aid or advice and assistance that you ensure that you account to us for all work under the correct grant.

We can make payment for work done prior to the grant of legal aid but only where work is done as a matter of special urgency under regulation 15 of the Criminal Legal Assistance (Scotland) Regulations 1996, to protect your client’s interests.

There is no similar provision under advice and assistance or ABWOR.

Make clear that you have satisfied the statutory tests

In any case where you grant advice and assistance or ABWOR, it is always helpful if you can make clear in your account that no work is being charged prior to the time when you were satisfied the grant could be made available namely it was a matter of Scots law and the client was financially eligible.

This is particularly important in cases where the first charge is travelling to see a client and there is no corresponding narrative to explain how you were satisfied that the statutory tests had been met.

In the situation where there was an initial meeting in your office, you must make this clear as only at this point are you entitled to charge for work done or outlays incurred.

Best practice is to insert a “nil entry” referring to a telephone call or correspondence.

Work undertaken before advice and assistance is granted is not chargeable.

Under advice and assistance you cannot charge for any time spent:

• obtaining information from a client about eligibility
• assessing financial eligibility
• obtaining evidence of disposable income or capital
• completing an advice and assistance application
• travelling to meet a client with a view to granting advice and assistance.

Advice and assistance is the giving of advice to a client on the application of Scots law to their circumstances; it is not about determining whether they are eligible to receive it.

You should always assess eligibility and obtain the documentary evidence of financial eligibility as early as possible, preferably at the initial meeting unless there is real urgency and it is not practicable, and keep this on file.

Any further work post-grant in obtaining verification, the purpose of which is to ensure that only those who are eligible for advice and assistance receive it and having admitted the client to advice and assistance, is not chargeable.

We may disallow the entire account, even within the initial limit of authorised expenditure, if we consider giving the advice was unnecessary and unreasonable.

Circumstances in which this could arise include where multiple advice has been provided to:

• a class or range of individuals in connection with a legal challenge if a separate interest cannot be shown
• a class or range of clients in connection with a legal challenge that has no practical benefit to the client, or where there is no current remedy, the law having been established.

Advice and assistance cannot be provided to a person in connection with proceedings before a court or tribunal at a time when he is receiving legal aid in connection with those proceedings [Section 7(2) of the Act].

You cannot continue to provide parallel advice and assistance and legal aid when this arises.

You may only charge for work activities that have been properly incurred and fall within the scope of legal aid or advice and assistance which has been made available.

There are certain work items which cannot be considered under a grant of legal aid, Advice and Assistance or ABWOR.