Who can provide Contempt of Court Legal Aid

If the contempt arises during civil proceedings, your firm must be registered on the Civil Legal Assistance Register.

If the contempt arises from decisions of children’s hearings, you and your firm must be registered on our Children’s Legal Assistance Register.

If the contempt arises during criminal proceedings, you and your firm must be registered on the Criminal Legal Assistance Register.

Section 30(4) of the Legal Aid (Scotland) Act 1986, states that contempt of court legal aid shall consist of representation by a solicitor and, where appropriate, by counsel and shall include all such assistance as is usually given by a solicitor or counsel in the steps preliminary to or incidental to proceedings for contempt of court or, in the case of legal aid made available under subsection (3) above, any appeal in connection with such proceedings.

Section 31 of the Legal Aid (Scotland) Act, allows you to entrust a case to another solicitor who is registered to provide contempt of court legal aid but you cannot entrust a case to a person who is not legally qualified to the extent of providing advice.

You can delegate certain work to an unqualified person. Provision is made for payment of such work at unqualified rates which is referred to in the Tables of Fees as a ‘solicitor’s clerk’.

A trainee who has been admitted as a solicitor, has a practising certificate and is registered to provide contempt of court legal assistance can grant advice and assistance and carry out all subsequent work as the solicitor. A person who is not a solicitor cannot do so.

There are limited circumstances in which a non-legally qualified person (including a trainee who has not been admitted as a solicitor) can be involved in the provision of advice and assistance.

A non–legally qualified member of the solicitor’s staff may carry out preliminary work to help you ingather information when considering an application for advice and assistance.

Where an unqualified member of staff takes details from a client and obtains their signature on a completed advice and assistance Declaration form, advice and assistance has not been granted until a solicitor is satisfied that the client is eligible to receive advice and assistance.

Also, whereas only a solicitor can give advice to a client, a suitably-trained unqualified person can undertake ancillary work, ingather information from the client, pass on advice formulated by a solicitor and assist in the provision of advice, or preparation of a case where appropriate, all at a lower rate.

However, only a solicitor can provide representation at court under Legal Aid. There is no fee for unqualified representation.

To avoid difficulties at the accounts assessment stage, you should note the instructions you have given an unqualified person when delegating them a particular task.

This should be recorded on file.

Where you delegate work to an unqualified person, it is essential that such staff are properly trained and that systems are in place to ensure that the delegated work is adequately supervised.

Where appropriate, there should be a note on the file and sufficient narrative on the account to indicate that procedure has been followed and that the unqualified person was passing on advice formulated by a solicitor to the client.

An unqualified person can:

• pass on advice formulated by a solicitor
• receive information which advances the subject matter of the advice and pass it on to the solicitor

Time spent in the passing on of such formulated advice by the solicitor to the unqualified person is not chargeable.

We do not consider it possible for a solicitor to provide an unqualified person with a general briefing on an area or areas of law, and then leave that person to give advice to a client.

Such advice would not be advice provided by a solicitor. Whilst the provision of formulated advice by an unqualified person at a focussed meeting for that purpose is entirely acceptable, it would generally not be considered to be appropriate at an initial meeting with a client.

The scheme does not envisage a person other than a solicitor giving advice in answer to questions that a client will no doubt have, and circumstances of which the solicitor is unaware, relying on the unqualified person to distinguish the situations in which they can go ahead and give the “usual” advice from novel situations.

Time spent by an unqualified member of staff, including a trainee who is not an enrolled solicitor, in carrying out work is chargeable at the lower rate for a ‘solicitor’s clerk’.

You cannot undertake any chargeable work:

• if your practising certificate has been restricted or has not been renewed on time
• during any period of suspension or while there is a gap in your entitlement to practice.