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Trainees can carry out various areas of work during their traineeship. However, they should not act without adequate training, without appropriate supervision, or without having gained sufficient knowledge and experience in the area of work which they are seeking to carry out. They must correctly identify themselves to clients and to the Courts and to any other relevant persons or bodies who they communicate with, as “Trainee Solicitors”, in order to avoid any misunderstanding or misrepresentation.
Trainees can apply to the Law Society to be admitted to the Roll of Solicitors; at the discretion of their supervising solicitor, and having been so admitted (or at the same time as applying for admission to the Roll) they can apply for a restricted Practising Certificate. There are many differences between the areas of work that can be carried out by a Trainee (generally First Year) who is not admitted to the Roll and does not hold a Practising Certificate, and a Trainee (generally Second Year) who has been admitted to the Roll and who does hold a Practising Certificate. These differences are considered in the following paragraphs.
If you have any questions regarding what can and cannot be done during the Traineeship then you can email Professional Practice on email@example.com. If you have any questions regarding applying to be admitted to the Roll or applying for a Practising Certificate then you can email Education, Training & Qualifications on firstname.lastname@example.org.
As a trainee there are a limited range of functions which you can perform.
You cannot represent a client in the Criminal Courts, and in Civil cases you can only appear as an "authorised lay representative" in a Small Claim or Summary Cause (see under the heading “Specific Areas of Work” below). You cannot grant Legal Advice & Assistance as you are not yet a solicitor
You can sit with Counsel in any Court including the High Court and the Court of Session.
Any business card which is printed should have the description "Trainee Solicitor" after your name.
Admitted and holding a practising certificate
At the end of your first year you are entitled to seek admission as a solicitor in terms of Part 6 of the Admission Regulations. You are not automatically admitted as a solicitor at the end of your first year, and the procedure for admission usually takes about 6 weeks. Once admitted, in terms of the undertaking you give to the Society, you can only act as an assistant and are not entitled to engage in private practice on your own account; and you are not entitled to undertake Legal Aid work in your own name.
You can appear on behalf of clients in any matter in the Sheriff or District Courts, although it is most unwise to appear in a Solemn case in the Sheriff Court at such an early stage in your career. You can also grant Legal Advice and Assistance, but you cannot be the nominated solicitor on a Legal Aid Certificate - either Civil or Criminal. You can appear on behalf of the nominated solicitor in the Court.
You can sign any document which requires to be signed by a solicitor. It is still necessary to have the words "Trainee Solicitor" on a business card if your employers are in private practice as the status and designation of employees must be unambiguously stated on the firm's professional stationery.
You can apply for and become a Notary Public once you are admitted and have been granted a practising certificate.
Specific Areas of Work
(1) (Authorised) Lay Representative~
The position regarding Lay Representation is quite complex because there are actually two separate concepts of Lay Representation both co-existing alongside each other. Firstly there is as “lay representative” in terms of Chapter 2A of the ACT OF SEDERUNT (SMALL CLAIM RULES) 2002 and the ACT OF SEDERUNT (SUMMARY CAUSE RULES) 2002 and in terms of Chapter 1 A of the ACT OF SEDERUNT (SHERIFF COURT ORDINARY CAUSE RULES) 1993. Secondly there is “authorised lay representative” in terms of Chapter 2 of the Small Claims Rules and the Summary Cause Rules.
It is considered that a trainee (without a practising certificate) could not normally be a “lay representative” in the Small Claims Court, the Summary Cause Court or the Ordinary Court, because Rule 2A.2.(4) (of the Small Claims and Summary Cause Rules) and Rule 1A.2.(4) (of the Ordinary Rules) provides that the “lay representative” must “not receive directly or indirectly from the litigant any remuneration or other reward for his or her assistance.”. Therefore if the litigant is paying the practice unit with which the Trainee is employed, a fee for the Court representation, then the Trainee (even if otherwise permitted by the Sheriff to be appointed as a lay representative) would be precluded from appearing because he or she would be receiving remuneration under a contract of employment which is tantamount to indirectly receiving remuneration or other reward from the litigant.
If however the litigant is not paying for their services, then the trainee could appear as a “lay representative” in the Small Claims Court, Summary Cause Court or Ordinary Court, although it is entirely subject to the discretion of the Sheriff, and a formal written application to the Court by the Party Litigant, requires to be made.
A trainee (without a practising certificate) could appear at the Small Claims Court or the Summary Cause Court as an “authorised lay representative” (which is “authorised” by the client - not by the Sheriff). The definition of "authorised lay representative" is “a person to whom section 32(1) of the Solicitors (Scotland) Act 1980 (offence to prepare writs) does not apply by virtue of section 32(2)(a) of that Act”. Effectively this only permits a trainee to appear if he/she is “an unqualified person” carrying out the work “without receiving, or without expecting to receive, either directly or indirectly, any fee, gain or reward (other than by remuneration paid under a contract of employment)”. Therefore the position is that in order to qualify as an “authorised lay representative” the person appearing on behalf of a party must not be paid for so doing, unless the payment is under a contract of employment (which in the case of a trainee it will be).
This however begs the question as to whether the practice unit with which the trainee is employed can charge the client for the trainee’s appearances. The spirit of the above Statutory Instruments would seem to be “No” but there would appear to be no specific prohibition which prevents the practice unit from charging a client for a trainee to appear as an “authorised lay representative”. The Society cannot “interpret” the legislation, however, a practice unit should consider the position very carefully and decide whether it would be wise or appropriate to either allow a trainee (without a practising certificate) to represent a client at Court as an “authorised lay representative”, or to charge the client for the trainee’s appearance at Court.
Once again, if the provider of the services is not charging the litigant for those services, then there would seem to be no valid argument as to why a trainee should not appear as an authorised lay representative. However an “authorised lay representative” cannot appear in Court on behalf of the litigant except at certain specific hearings.
(2) Mental Health Tribunals
The Mental Health (Care and Treatment) (Scotland) 2003 Act, states at section 64 and various other sections, the persons who can appear before a Tribunal and these include:-
(b) the patient’s named person;
(c) any guardian of the patient;
(i) any curator ad litem appointed in respect of the patient by the Tribunal;
(j) any other person appearing to the Tribunal to have an interest in the application.
Rule 54(3) of the Mental Health Tribunal for Scotland (Practice and Procedure) (No. 2) Rules 2005 (SSI 2005/519) provides:
“At any hearing a relevant person may conduct the relevant person’s own case (with assistance from any person if the relevant person wishes) or may be represented by any person whether or not legally qualified.”
The term “relevant person” is defined in Rule 2 as “any party and any other person who sends a notice of response under Part II, IV or V of these Rules indicating a wish to make representations or to lead or produce evidence”. Essentially this means any party to the proceedings before the Tribunal, which would include the patient, named person, MHO in some circumstances, RMO in other circumstances, relevant Health Board in some cases, and the Scottish Ministers where the case concerns a restricted patient.
A solicitor would clearly be entitled to appear under s.64(j) above. Regarding the question of whether a trainee (either with or without a practising certificate) has an “interest in the application”, given the terms of Rule 54(3), it is unlikely that any Tribunal panel would take it upon itself to determine whether or not a trainee solicitor could appear under s.64(j), beyond establishing that the trainee solicitor was a party’s representative. Further, given the terms of that Rule, it seems unlikely that any Tribunal panel would take it upon itself to assess whether or not a trainee solicitor representing a patient had sufficient experience and knowledge of Mental Health law and procedure. However, the Tribunal does have power under Rule 54(4) to “refuse to permit a particular person to assist or represent a relevant person at a hearing” if it “is satisfied that there is a good reason”. It seems unlikely that the lack of a practising certificate would by itself constitute “a good reason” to refuse to permit a trainee solicitor to represent a party at a hearing.
In practice, if a trainee (enrolled and with a practising certificate) had clear instructions from the patient and had sufficient experience and knowledge of Mental Health law and procedure then it is likely that that person would be permitted to appear at a tribunal hearing.
The position is less clear for a trainee without a practising certificate. If such a trainee does not have the necessary experience and knowledge to represent a patient then clearly they should not be required to do so. In any event, it may be the case that Legal Advice and Assistance or Legal Aid would not be available for representation of a patient by such a trainee, although that matter could of course be checked with the Legal Aid Board.
It might be possible for a trainee without a practising certificate to be a named person under s.64(b) but that would normally be expected to apply to a relative or close friend of the patient and it is unlikely that Legal Advice and Assistance or Legal Aid would be available for representation on that basis.
A solicitor might in some circumstances be appointed as a curator ad litem but it is unlikely that a trainee without a practising certificate could be so appointed.
In general therefore it is the view of the Society that a trainee without a practising certificate should not seek to represent a patient at a Mental Health tribunal unless they have the appropriate knowledge and experience.
Additionally, it is the Tribunal’s practice to insist on practising certificates before appointing anyone to their List of Curators.
(3) Licensing Board
Non-solicitors can provide representation and therefore it is open to trainees with or without a practising certificate to appear. However their status should be declared at the outset of the Hearing and naturally the consent of the client to the arrangement would have had to have been obtained. A practice unit should appreciate however that they should not take on work unless they are able to provide an efficient and skilful service to the client. Therefore a trainee who lacks the necessary knowledge and experience should not be permitted by the practice unit to represent a client at a Hearing.
(4) Immigration Tribunals
The Immigration and Asylum Act 1999 Section 84 provides:-.
(1) No person may provide immigration advice or immigration services unless he is a qualified person.
(2) A person is a qualified person if—
(c) he is authorised by a designated professional body (which includes the Law Society of Scotland).to practise as a member of the profession whose members are regulated by that body, or works under the supervision of such a person;
A trainee without a practising certificate is not entitled to “practise as a member of the profession” and therefore cannot appear at an Immigration Tribunal. A trainee with a practising certificate could appear at an Immigration Tribunal providing the trainee has the necessary knowledge and experience.
(5) Employment Tribunals
Solicitors can represent clients at Employment tribunals and that would include trainees with a practising certificate (if they had the necessary amount of experience). There is no legislation to prevent trainees without a practising certificate appearing at Tribunals also but it is doubtful whether they would have the requisite experience. Such trainees who are seeking to appear at a Tribunal may wish to check the position with the Tribunal clerk.
(6) Childrens Hearings
Under the Childrens Hearings (Scotland) Act 2011 section 78, a “person representing a child” and a “person representing a relevant person in relation to the child” (unless that person has been excluded under s.77(2)) have the right to attend Childrens Hearings. The person carrying out the representation does not need to be a solicitor and accordingly a f trainee with or without a practising certificate could appear, providing they have the requisite knowledge and experience to properly represent the child or relevant person.
If the case is referred to the Sheriff for a determination under s.93 (where the grounds of referral are not accepted) or s.94 (where the child or relevant person is unable to understand the grounds) then s.104 states that at the hearing before the Sheriff, a person representing the child or relevant person need not be a solicitor. Once again therefore it would seem that a trainee (with or without a practising certificate) could appear providing they have the requisite knowledge and experience to properly represent the child or relevant person. However this may be a somewhat daunting prospect for a trainee without a practising certificate and careful consideration should be given to whether it would be in the client’s best interests. There is also the further consideration as to whether a trainee without a practising certificate could carry out such representation at Court under Legal Advice & Assistance or Legal Aid (which matter would have to be checked with the Legal Aid Board). It is the general view of the Society that it is not appropriate for a trainee without a practising certificate to represent a client in Court in such a case, in view of their lack of experience.
(7) Certifying Powers of Attorney
Sections 15, 16 and 16A of the Adults with Incapacity (Scotland) Act 2000 provide that a continuing power of attorney or a welfare power of attorney must incorporate a certificate by a “practising solicitor” (“or a member of another prescribed class” such as a doctor) that the solicitor or doctor has interviewed the granter immediately before he or she signed the documents; that the solicitor or doctor is satisfied from their own knowledge or having consulted other named persons that the granter understands the nature and extent of the power of attorney; and that the solicitor or doctor has no reason to believe that the grantor is acting under undue influence or that any other factor vitiates the granting of the document.
A trainee without a practising certificate could not be a “practising solicitor” and therefore could not sign the certificate. A trainee (with a practising certificate) could be a “practising solicitor” but since these are onerous responsibilities requiring a degree of experience of practice it is considered by the Society that such responsibility should not be placed on a trainee solicitor with a restricted practising certificate and therefore that a trainee should not sign the certificate.
(8) Custody Visits
Article 5 of the Code of Conduct for Criminal Work states that “only a solicitor or trainee solicitor who has been instructed to do so may visit the client in custody.”. Effectively therefore a any trainee can visit a client in custody, although consideration should be given as to whether it is appropriate to do so in terms of (a) the state of knowledge and experience of the trainee, and (b) the client’s expectation.
(9) Lands Tribunal and Lands Valuation Appeal Court
The Land Tribunal Rules for Scotland 2003 provide at Rule 16 that:- “In any proceedings before the Tribunal any party to the proceedings may appear and may be heard in person or be represented by counsel or solicitor, or, with leave of the Tribunal, by any other person.”. On that basis, a trainee with a practising certificate could appear providing the trainee had the requisite knowledge and experience. A trainee without a practising certificate could appear with leave of the Tribunal but this would present a huge and unacceptable risk since if permission is not granted then the client could end up being unrepresented.
The Valuation Appeal Committee (Procedure in Appeals under the Valuation Acts) (Scotland) Regulations 1995, in relation to the Land Valuation Committee, Reg. 13 provides that “a party may appear before and be heard by the Committee in person (with assistance from any person if he wishes) or he may be represented by any person whether or not legally qualified..”. This would enable a trainee (with or without a practising certificate) to represent a client before the Committee, but it is unlikely that in such a specialised area, a trainee will have the necessary degree of skill and experience.
(10) Fatal Accident Inquiries
In terms of Rule 7(2) of the Fatal Accidents and Sudden Deaths Inquiry Procedure (Scotland) Rules 1977, “any person entitled to appear at an inquiry in terms of section 4(2) of the Act” (Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976) “may appear on his own behalf or be represented by an advocate or a solicitor or, with leave of the Sheriff, by any other person.”.
Theoretically, a trainee without a practising certificate could therefore attend at Court and represent one of the persons entitled to appear at the Inquiry, but only with leave of the Sheriff. In practice however it would not normally be appropriate for such a trainee to make application to the Sheriff to appear in a representational capacity unless the trainee could prove that he/she had sufficient knowledge, experience and ability to appear and to conduct the proceedings.