Mandates in criminal work (Article 7 of the code of conduct for criminal work)
All Mandates requesting the transfer of papers and legal aid relating to a criminal matter shall be completed and executed by the assisted person in the form agreed by the Scottish Legal Aid Board and the Law Society of Scotland. The Mandate should include the place and date of signing and a full explanation as to why the Mandate has been issued.
The matter is governed by the Criminal Legal Aid (Scotland) Regulations 1987, paragraph 17(3), which states where an assisted person desires that a solicitor, other than the solicitor presently nominated by him shall act for him, he shall apply to the Board for authority to nominate another specified solicitor to act for him and shall inform the Board of the reason for his application; and the Board, if it is satisfied that there is good reason for the application and, in the case of Legal Aid made available under Sections 24 or 25 of the Act that it is in the interests of justice or, as the case may be, is reasonable, for him to receive or continue to receive Criminal Legal Aid, may grant the application.
It seems clear from a plain construction of this Regulation that changes of agency where the client is legally aided in a criminal case can only take place if the Board gives the client authority to nominate another specified solicitor. Until the Board gives its authority the client cannot instruct another solicitor unless he wishes to do so without the benefit of Legal Aid, which fact should be notified to the Board.
Therefore the chronology of transfers of agency in criminal cases should be (1) the client approaches his proposed new solicitor to ascertain if he is willing to act; (2) client applies to Board for authority to transfer the agency; (3) Board grants authority; (4) client instructs new solicitor; (5) new solicitor serves Mandate on previous solicitor.
The Board's authority to transfer must antedate any Mandate.
This Statement would solve many issues including inducements to transfer agency and Mandate wars. Adoption of this interpretation would of course mean that legally aided clients and fee paying clients will not be treated precisely equally. However, that objection has to be seen in the light of the need to comply with the Regulations which effectively impose a statutory suspensive condition on any Mandate and the requirement that solicitors will require to inform a transferring client that instructions cannot be accepted until the Regulations are complied with.
Form of Mandate approved by the Council
I write to inform you that the Scottish Legal Aid Board has transferred Legal Aid Certificate No. from you to my new nominated solicitor who is I authorise and instruct you to transfer to all papers, documents and files which you hold on my behalf in relation to this matter.