Who can provide Criminal Legal Aid, Advice and Assistance and ABWOR?

The question as to who can provide legal assistance is central to an understanding as to what is properly chargeable in your account.

You can only provide criminal legal assistance if you are registered.

It is a firm’s Compliance Partner’s responsibility to ensure that any instructed agent or solicitor is registered.

Section 25A of the Legal Aid (Scotland) Act 1986, outlines the requirements for the registration of both individual solicitors and firms wishing to provide criminal legal assistance.

Section 21(4) of the Legal Aid (Scotland) Act 1986, states that criminal legal aid shall consist of representation, on terms provided for by this Act:

• by a solicitor and, where appropriate, by counsel
• by a solicitor at any identification parade held, by or on behalf of the prosecutor (within the meaning of section 307 of the Criminal Procedure (Scotland) Act 1995), in connection with or in contemplation of criminal proceedings against the person so represented,

and shall include all such assistance as is usually given by a solicitor or counsel in the steps preliminary to or incidental to criminal proceedings.

Section 6 of the Legal Aid (Scotland) Act 1986 states that only a solicitor (or where appropriate, counsel) can provide oral or written advice and assistance to a person:

• on the application of Scots law to any particular circumstances which have arisen in relation to the person seeking the advice
• as to any steps which that person might appropriately take (whether by way of settling any claim, instituting, conducting or defending proceedings, making an agreement or other transaction, making a will or other instrument, obtaining further legal or other advice and assistance, or otherwise) having regard to the application of Scots law to those circumstances
• assistance provided to a person by a solicitor (or, where appropriate, by counsel) in taking any steps mentioned above, by taking such steps on his behalf or by assisting him in so taking them.

Who can provide advice and assistance?

Only a solicitor (or counsel) can provide advice and assistance [section 6 of the Act]. It is important to recognise this and other restrictions under our legislation in the way in which your firm may otherwise provide legal services to a client, see Regina v Legal Aid Board, ex parte Bruce [1992] 1 WLR 694.

You may, of course, entrust a case to another solicitor [Section 31 of the Act] but, subject to the guidance immediately below, you cannot entrust a case to a legally unqualified person to the extent of providing advice.

Advice and Assistance – Importance of adhering to the statutory scheme to avoid unnecessary restrictions

You decide who is eligible for advice and assistance and the extent to which you provide it.

You should be aware of the circumstances in which advice and assistance is available and can be provided to avoid your account being restricted.

It is important to understand that you are working within a clearly defined legislative structure and to recognise the requirements, and restrictions under our legislation to the way in which your firm may otherwise provide legal services to a client.

It is important that you are aware of the circumstances in which advice and assistance is available and can be provided to your client to avoid your account being restricted in circumstances where we have no discretion other than to disallow or, in extreme situations, incur fees and outlays that are not chargeable to the Fund.

Circumstances in which this may arise include:

• the client was not financially eligible for advice and assistance – you must obtain documentary evidence, or verification, wherever practicable
• the subject matter of the advice and assistance was not a matter of Scots law
• the client was not admitted to advice and assistance by a solicitor
• the client was not a “person” to whom advice and assistance could be given
• a Declaration was not completed and signed by the client and/or retained by the firm
• there was insufficient authorised increase in place before undertaking the work and/or incurring an outlay
• the work was done under the wrong template;
• Advice and Assistance was provided to a person in connection with proceedings before a court or tribunal at a time when they were receiving legal aid in connection with those proceedings (“parallel A&A”); or
• work ostensibly done under A&A was actually ABWOR, for which ABWOR is not available.

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.

ABWOR is a type of advice and assistance where representation may be provided.

Section 6 of the Legal Aid (Scotland) Act 1986 states that only a solicitor (or where appropriate, counsel) can provide assistance by way of representation to a person where the work involves taking any step in instituting, conducting or defending any proceedings

• before a court or tribunal; or
• in connection with a statutory inquiry.

Whether by representing him in those proceedings or by otherwise taking any step on his behalf (as distinct from assisting him in taking such a step on his own behalf).

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

Trainees and non-legally qualified members of staff

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’.

There is no fee for representation for an unqualified person under ABWOR or Legal Aid.

A trainee who has been admitted as a solicitor, has a practising certificate and is registered to provide criminal 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 or before a tribunal under ABWOR or 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.

Supervision

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.

While 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’.

Can I delegate to an out of house professional?

Advice and assistance is defined as oral or written advice, provided by a solicitor to a client. It is not competent to refer the matter to another professional person, such as an accountant or financial adviser for advice to be given by that professional person.

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.