Legal aid news and updates

Legal aid news and updates December 2013

Advisory Code of Conduct for Criminal Work changes

Criminal legal aid practitioners should note two important changes to the advisory Code of Conduct for Criminal Work.

The changes were approved by the Society's Professional Practice Committee in response to the Scottish Government's decision to have solicitors collect legal aid contributions in summary criminal cases.

Despite maintaining that solicitors should not have to collect contributions, the Society made a commitment to meet the needs of our members by helping to promote a stable, properly regulated marketplace.

In meeting this commitment, a Society working group identified two key issues:

  • the time of accepting instructions and acceptable policy to seek instructions
  • the situation immediately prior to any trial date and how a solicitor might be expected to react to an unpaid, properly assessed contribution

On the first issue, a change has been made to the guidance to article 1. After "…that inducements have been offered in exchange for instructions…" the following sentence has been added: "It will be considered an inducement for a solicitor or firm of solicitors to advertise and/or have a general policy of non-collection of properly assessed contributions."

On the second issue, it was recognised that there were numerous situations that might lead to an assessed contribution either having been paid partially or not at all. It was considered impractical to attempt to list and grade all eventualities. However, it was agreed to make the following addition to the guidance to article 9: "If a plea of not guilty is tendered and the solicitor has not been paid the contribution in full by the intermediate diet, he/she should withdraw from acting, or if a decision is taken to continue to represent the client, should do so on a pro bono basis and not access any publicly funded assistance."

The code is advisory and if a complaint is made alleging a breach of the code of conduct, the solicitor will be given the opportunity to explain his or her actions.

The changes were made following consideration by the Society working group examining this issue and after senior counsel's opinion was taken. The possibility of drawing up new rules was considered but, at least prior to the new system being in operation and monitored for some time, it was recognised that the statutory requirements to justify rules could not be met.

These new provisions will become effective at the same time as the introduction of universal contributions, which is now expected in February 2014.

Any comments are welcome and will be considered. Please email Oliver Adair, working group chair, oliveradair@lawscot.org.uk