Where a solicitor is approached by the police or the procurator fiscal to make a statement about a matter which touches on his or her client’s confidentiality, generally, the solicitor should decline but offer instead to be precognosced on oath before a sheriff. This is unnecessary where the solicitor is a witness to an alleged fraud in respect of his or her client’s legal aid application. In these circumstances, the solicitor has an overriding statutory duty to report information to the Scottish Legal Aid Board.
There are exceptions to the common law duty, and it is of course open to Parliament to make statutory exceptions in order to protect public confidence in the legal profession and to ensure the proper administration of justice.
An example of such an exception is in relation to a legal aid application, where the issue of confidentiality does not arise. Under reg 24(2) of the Civil Legal Aid (Scotland) Regulations 1996, no solicitor shall be precluded by reason of any privilege arising out of the relationship between the solicitor and the client in disclosing information to the Scottish Legal Aid Board.
Regulation 24 states:
“(1) Where an assisted person’s solicitor or counsel has reason to believe that the assisted person has – (a) required his case to be conducted unreasonably so as to incur an unjustifiable expense to the Fund or has required unreasonably that the case be continued; or (b) wilfully failed to comply with any requirement of the Act or of these Regulations as to the information to be furnished by him or, in furnishing such information, has knowingly made a false statement or false representation, the solicitor or counsel shall forthwith draw this matter to the attention of the Board.
“(2) No solicitor or counsel shall be precluded, by reason of any privilege arising out of the relationship between counsel, solicitor and client, from disclosing to the Board any information, or from giving any opinion, which he is required to disclose or give to the Board under the Act or these Regulations, or which may enable the Board to perform its functions thereunder.”
Solicitors therefore have a duty to report any abuse of legal aid, which overrides any duty of confidentiality owed to the assisted person because of any privilege arising out of the relationship between solicitor and client. In addition, the content of an application for legal aid which has been submitted to SLAB is not confidential as regards any investigation instigated by SLAB. These are exceptions to the stipulation in s 31(7) of the Legal Aid (Scotland) Act 1986 that legal aid is not to affect the relationship between solicitor and client or their respective rights.
Extent of disclosure
The case of Micosta SA v Shetland Islands Council 1983 SLT 483 serves as a useful reminder that a solicitor’s duty of confidentiality is not a justification for failing to disclose a fraud or some other illegal act of a client, if the solicitor has been directly concerned in carrying out the very transaction which is the subject matter of the inquiry.
Where a solicitor is a witness to an alleged fraud in respect of a legal aid application, he or she must co-operate with SLAB, the procurator fiscal and the police. As a minimum the solicitor should disclose:
- the identity of the applicant;
- whether or not the solicitor can identify the applicant;
- any information about finances, property owned or bank details provided by the applicant in furtherance of the legal aid application.
For the avoidance of doubt, the exception would not cover the legal advice that has been provided to the applicant.
In this issue
- Miller, Brexit and BreUK-up
- Power to the people?
- Prerogatives, Parliament and the constitution: plus ça change?
- Decisions in high places
- Reading for pleasure
- Journal magazine index 2016
- Opinion: Callum Sinclair
- Book reviews
- President's column
- Have you heard of ScotLIS?
- People on the move
- Article 50: the final say
- Where courts fear to tread
- "Wake up": how young lawyers see the future
- How healthy is our legal aid system?
- Challenging assumptions
- Planning to deliver
- Contact and the fear factor
- And the bill goes to...?
- Pakistan to join Child Abduction Convention
- Dress to impress?
- Handcuffing of prisoners and article 3
- Turning up the heat on workplace change
- Scottish Solicitors' Discipline Tribunal
- Not just for the green welly brigade
- Five by five
- Law reform roundup
- Relief over pensions and bankruptcy ruling
- Helpline plus
- Spill the beans on legal aid fraud
- The art of bringing the good news
- Cybercrime: how are you protected?
- Ask Ash
- One year rule becomes three
- From the Brussels office