As restrictions ease and we begin to look beyond the Covid-19 pandemic, we will continue to keep our members informed via direct emails, including our fortnightly e-newsletter Lawscot News, on our social media channels, and here on our website. As always, we are keen to hear feedback from our members.

We are continuing to monitor official advice and updates from the Scottish Government and NHS to ensure that we are acting in accordance with the latest guidance to protect the health, safety and wellbeing of our employees, members and stakeholders, while continuing to carry out our duties as the professional body for Scottish solicitors and provide services for our members and for members of the public.

Please scroll through the drop down list below to find the latest updates for solicitors, trainees and students.

The most recent key additions and changes are highlighted below.

Wednesday, 4 August 2021
  • The Scottish Government opened its Legal Aid Business Support and Recovery Fund on Wednesday 4 August 2021. The application deadline is midnight on 18 August 2021. Read more in Practice Updates | Court: civil and criminal (including legal aid)
Wednesday, 14 July 2021
  • Scottish Courts and Tribunals Service has published information about new operating arrangements for the courts following the Scottish Government announcement that Scotland will move to ‘Level 0’ Covid protection arrangements on 19 July. Read more in Practice Updates | Court: civil and criminal (including legal aid)
Practice updates
You can find specific updates on Criminal Courts, Civil Courts, and Legal Aid under the headings below. 

General information

Attending court

Anyone attending court must be aware that STCS has instructed that YOU MUST NOT ENTER ANY COURT BUILDING IF YOU HAVE ANY COVID-19 SYMPTOMS OR HAVE BEEN ASKED TO SELF-ISOLATE, in line with Scottish Government guidance

Solicitors who remain willing and able to attend court are advised to ensure that they are aware of the terms of the protocol for court users (updated 11 January 2021) that has been agreed between SCTS and COPFS.

Solicitors' health and safety should be their primary concern and there is no requirement under the Law Society of Scotland’s Practice Rules to attend court if, in line with current NHS and Scottish Government guidance, they feel it is unsafe for them to do so. A solicitor will not be found to have breached our rules provided they have ensured that:

- Their clients are informed without undue delay
- The court is advised without undue delay.
- Reasonable efforts should be made to advise all other parties anticipating your attendance at court without undue delay, for example COPFS, opposing parties and witnesses.

Solicitors attending court should be aware that their travel and subsequent appearance is covered by Regulations 5(1), 6(d)(iv) 8(4) and 8(5)(f) and (h) of the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 and be aware of the latest SCTS advice for subsequent updates. If any solicitors have concerns about the Covid-19 security of any SCTS premises you are asked to bring this to our attention by contacting the Professional Practice team at profprac@lawscot.org.uk.

July 2021
  • Information about Level 0 arrangements - SCTS published a briefing Moving beyond 'Level 0' on 14 July 2021. The safety measures in courts and tribunals, including two-metre physical distancing, were designed to operate at all levels from 0 to 4.  There will not be any immediate changes made in the period between 19 July and 9 August. The briefing on the SCTS website also provides information on steps to be taken from 9 August. 
  • The Society's President Ken Dalling has responded to the update, saying that while the plans do not go far enough, the Society remains committed to working with SCTS and other agencies within the justice sector to help shape what our courts look like as we move past the pandemic. Read our news release.
May 2021
  • Information about new operating arrangements of the courts, has been published by Scottish Courts and Tribunals Service (13 May 2021) following the Scottish Government announcement that Scotland will move to ‘level 2’ Covid protection arrangements on 17 May.
    • The guidance for Sheriff Courts has been adapted, moving from a fixed summary criminal trial loading of five cases per trial court to allocating cases within the maximum safe capacity for each court room.
    • Justice of the Peace Courts will recommence operation on 7 June 2021. Justice of the Peace trials will be allocated ensuring the loadings do not exceed the maximum safe capacity for each court room.
    • Civil hearings will continue to be conducted remotely, other than in exceptional circumstances where the physical presence of witnesses will be permitted.
March 2021
  • Law Society President Amanda Millar has written to the Lord President to raise concerns about the impact on the resilience of the profession the more regular use of holiday courts and the proposal being considered to use weekend trial courts to manage the court backlog. She has confirmed that the Society remains committed to working with partners across the justice sector to develop innovative solutions to the backlog. On 19 March 2021, Scottish Courts and Tribunals Service said that weekend trial courts will not be part of the recovery plan to reduce the criminal court backlog being rolled out from September. Amanda has welcomed this news, but said that concerns about the impact of more regular holiday courts remain valid.
  • On 17 March 2021 the Lord President announced that while there is a need for the current restrictions to continue in the short term, there can be a cautious and incremental easing of the current criminal court restrictions:
    • From 19 April 2021, Sheriff Court cited cases will re-start and summary trial courts will return to their pre-January lockdown loadings of three trials programmed with two backup case cases with witnesses on standby.
    • From 7 June 2021, Justice of the Peace Courts will re-start all business.
February 2021
  • Following a review of the current public health guidance the Lord President announced on 12 February that the restrictions in place on court business will be extended throughout March. This means that the criminal courts will continue to focus on the most serious trials and the majority of summary trials in the Sheriff Court and Justice of the Peace Court will be adjourned.
January 2021
  • In light of the continuing and challenging criminal justice situation, our Criminal Law Committee has now set up the COVID Criminal Endurance Recovery Group. Notes from the weekly meeting are added to the group's page on our website. The group is a way of gathering feedback from practictioners working in courts across Scotland which can then be used to inform discussions with the Scottish Courts and Tribunals Service, Crown Office and Procurator Fiscal Service and the Faculty of Advocates, to highlight what's working and what could improve for court users in the current circumstances.
  • Following consideration of further information on the current spread of coronavirus, the Lord President announced that from Tuesday 12 January 2021 criminal courts will focus on the most serious trials and the majority of summary trials will be adjourned.
  • All criminal appeals, the Bail Appeal Court, Office of the Public Guardian and Tribunals will continue to operate virtually and remotely, as they have been doing throughout the pandemic.

  • The vast majority of all civil business in the Court of Session and Sheriff Court will continue to be conducted remotely. This includes the All Scotland Personal Injury Court (ASSPIC) and the Sheriff Appeal Court (SAC).

  • Please continue to follow current government guidance to minimise risk of transmission.
December 2020
  • The Scottish Courts and Tribunals Service has issued a Covid-19  update following the First Minister’s announcement. Courts and tribunals are defined as essential services that remain open under all four levels of the current Covid-19 arrangements.  We have been informed by SCTS that business programmed for this week and the coming weeks will, therefore, continue as normal.  If you are due to attend a court or tribunal in the coming period, you should continue to do so – unless specifically advised otherwise. SCTS has said it will continue to maximise remote hearings where possible, alongside conducting essential business in court premises. When attending court in person, please ensure you continue to take precautions against transmission by maintaining two-metre social distancing, frequent handwashing, wearing a face covering and registering with Safe2Go when you are on site. You can read more on safety in court and tribunal buildings on the SCTS website.
June 2020
  • 1 June: SCTS issued an update on sheriff court business and reopening courts and tribunals buildings, in line with the Scottish Government Covid-19 move into Phase 1 of their Route map, for both criminal and civil business.

Criminal courts

May 2021

In the recent joint communication about improvements to the booking service used for PIDMs, it was explained that a further update would be issued when the testing exercise for appointments made by administrative staff had been completed. The testing concluded this week. The registration process was completed successfully for each individual nominated for the exercise. There are no known difficulties in making bookings and no negative feedback.

The Crown is therefore now able to make this facility generally available to all practitioners. Individual applications will be processed as quickly as possible. Defence firms must provide their Law Society number to COPFS for security validation (you can find this on your practising certificate), and the request for the new account must also come from your registered Law Society email address. The process is explained in more detail at the start of a frequently asked questions coument which is now available on the COPFS website.

The guidance on the COPFS website has also been updated to reflect this new process. As explained previously, this guidance will be subject to continuous joint review. The website has also separate, supporting video clips for each stage of the booking process.

The Crown is continuing to look at ways of improving the service for booking PIDM appointments. The Crown also remains keen to receive feedback from the profession to assist us in making further improvements. A further update will be provided once any possible changes have been identified.

Ken Dalling, Vice President of the Law Society of Scotland, and John Logue, Deputy Crown Agent Local Court

March 2021

The Scottish Prison Service (SPS) have confirmed that where there are custody/prison escort issues which impact on your clients and your work as a solicitor, you should complete the Scottish Court Custody and Prison Escorting Services Service Review Form. Details of how to submit are included in the form. Completing this form when there is an issue allows SPS to monitor issues and take action and identify wider trends.

August 2020

6 August - Bail Appeal Court: From Monday 17 August 2020 the Bail Appeal Court, which currently sits in Court No 1 at Edinburgh Sheriff Court, will move to a fully virtual format, sitting each weekday morning at 9am. All participants will join the proceedings by WebEx video-conferencing, which has already been deployed in other Scottish courts, including the Sheriff Appeal Court. You can read the full Sheriff Appeal Court guidance for practitioners appearing in the Bail Appeal Court on the SCTS website.

June 2020
  • 15 June - Jury Citations: SCTS issued an update that the first jury citations for potential jurors since the start of the Covid-19 lockdown, had been sent out in preparation for High Court trials to restart in Edinburgh and Glasgow in July. See their website for more information.
  • On 1 June the Lord President issued a practice note on Re-introduction of Summary Criminal Business.
May 2020
  • 27 May: You can read the submission from our Criminal Law Committee to the Scottish Parliament Justice Committe on restarting jury trials.
  • 12 May: Lord Carloway established a working group on restarting solemn trials on 12 May. It will be led by Lady Dorrian with representatives from across the sector, including the Society,  to consider the practicalities of restarting jury trials as and when public health guidelines permit. The options include:

    • Smaller numbers of jurors
    • Social distancing measures within existing court facilities
    • Measures to enable faster progression of jury trials to address backlog following easing of public health restrictions
    • Potentially adjusting the sentencing powers of Sheriff Courts (summary and solemn)
  • 11 May: The SCTS has published guidance in respect of facilitating guilty pleas in summary criminal proceedings in the sheriff and justice of the peace courts during the current Covid-19 emergency. The guidance, which came into effect from 11 May 2020, contains arrangements for the closed courts as well as the 10 hub courts which have remained open. Please note there has been an update to this by SCTS on 8 June advising solicitors to be aware that in providing the documents to accompany an application made in terms of either paragraph 2.1 or paragraph 3.1, these may be seen by journalists for this purpose.  The letter setting out the terms of the plea of guilty, the summary of evidence provided by the prosecutor and the written plea in mitigation may all be accessible by journalists unless specifically restricted by the sheriff.
  • Business has been consolidated into 10 Sheriff and JP Court Hubs across Scotland. Orders and guidance have been issued by Sheriffs Principals for each sheriffdom on how business is being transferred.
April 2020
March 2020
  • The Crown Office and Procurator Fiscal Services published information for solicitors on the impact of COVID-19 on 19 March 2020.
  • The Faculty of Advocates issued a Dean's ruling on 24 March to extend rights of counsel to appear without the instructing solicitor (previously available in civil matters) to all criminal matters with the exception of trials. This does not change the obligation of solicitors to instruct counsel or solicitor advocates. We would remind all members of their responsibility to liaise with both clients and counsel about any changes to their availability during this time.

Civil courts

For civil business, a three-stage approach will be followed for all cases, except summary cause actions for the recovery of heritable property, with phase one currently underway. More information about each of the three phases is available on the SCTS website.

July 2020
  • Following repeated representations by the Civil Justice Committee and Law Society colleagues on behalf of our members, Scottish Courts and Tribunals Service has confirmed that courts will continue to accept simple procedure claims in paper and online. The initial position that paper-based forms submitted after 1 June (later clarified as after 15 June) would be rejected without warning was of significant concern to our members and the clients they represent. We would like to thank SCTS for listening to the feedback we shared and reconsidering their position so that paper-based forms can continue to be submitted until a full digital solution is available.
June 2020
  • 25 June; The Scottish Courts and Tribunal Service has confirmed that simple procedure action submitted on or after 1 June 2020 must be submitted via the Civil Online plaform. The Convener of our Civil Justice Committee has written to ask for a review of this decision. Read more on our website.
  • 24 June: The Law Society of Scotland / Scottish Courts and Tribunal Services (SCTS) working group has met for a second time to plan for a move to Phase 2. Representatives from the Law Society Civil Justice Committee, SCTS, the Faculty of Advocates and members of the profession were included in the discussion, which covered updates on progress to date, responses to potential concerns and projections for future ways of working.
  • You can read the full minute here.
May 2020

The Law Society has set up a working group with SCTS to plan for a move to phase 2 (partial re-opening of the courts). The group had its first video meeting on 14 May.

The working group intends to hold discussions with relevant stakeholders and user groups on future work practices. The precise nature of appropriate changes will be considered in detail as we move into phase 2 and practitioners have gained greater experience of undertaking video or telephone-based hearings. In the meantime, members of the working group and the associations or user groups which they are members of are to prepare guidance for the profession to facilitate the working relationship with the courts as we move into phase 2. The timing of phase 2 remains subject to Scottish Government announcements.

  • Under new guidance, effective from 1 May 2020, the following categories of sheriff court business will be able to be progressed:
    • Ordinary, family and commercial actions; adults with incapacity applications; and corporate insolvency proceedings – cases sisted by the court ex proprio motu, administratively adjourned to a date on or after 1 June 2020, or in respect of which no further order was made, can progress where the court is satisfied that there is good reason why the action should be restarted and that it can be progressed remotely without recourse to a hearing which requires the leading of evidence; and
    • commissary business: applications should be sent in hard copy to the relevant hub court. Court users are warned that due to significantly reduced staff resources, commissary applications will take longer to be processed.

Further information and the full guidance can be accessed here.

  • The Scottish Courts and Tribunal Service has published guidance outlining how the All Scotland Sheriff Personal Injury Court (ASSPIC) will restart business during the current Coronavirus situation.  The guidance is effective as of 25 May 2020 and you can find further information and access the full guidance on the SCTS website.

Legal Aid

4 August 2021
  • The Scottish Government opened its Legal Aid Business Support and Recovery Fund on Wednesday 4 August 2021. The application deadline is midnight on 18 August 2021

    To apply for a grant from the Legal Aid Business Support and Recovery Fund:

    • You must be an ‘active’ firm with at least 25 legal aid grant applications in 2019/20 and at least 12 in 2020/21.
    • You must support the principles of the Scottish Government’s Renew, Recover and Transform Programme and commit to continue to provide Legal Aid provision until 31 March 2022.

    Members who received a grant under the previous Covid-19 resilience fund, can still apply for this fund, but must meet the criteria outlined above.  

    • At the start of Part B there is a list (see below) that directs applicants to where the application form requires completion with dates and signatures.  All of these sections are required to be completed prior to submitting your application.  The date you are submitting the application is the date you should use.  
    • Applicants to the fund are asked to:
      1. complete the Application form;
      2. sign and date the declaration in relation to the application on page 10,11 and 12;
      3. complete the name of Grantee at pages 13, 19 and 24;
      4. sign and date the Grant Acceptance Form on page 19 and 20;
      5. sign and date the Statement of Compliance Form on page 24; and
      6. send completed applications via email to LABSGrant@gov.scot
10 February 2021
  • The Scottish Government Coronavirus Resilience and Recovery Fund for Legal Aid opened for applications on 10 February 2021, with the deadline for applying set as midnight on 31 March 2021.
  • Legal aid regulations were laid in the Scottish Parliament on 2 February to bring a 5% uplift in legal aid fees into effect from 22 March 2021. We expect similar regulations in twelve months' time to implement a further 5% uplift.
  • The Scottish Government has confirmed a financial package of support for legal aid practitioners. 
SLAB updates

SLAB Covid-19 updates for solicitors are available on its website.

  • 13 May: SLAB has published guidance on providing applicant financial information on its website during the Covid-19 outbreak.
  • On 3 April SLAB confirmed that with immediate effect and for the duration of the time that custody appearances are consolidated into a reduced number of courts, SLAB will consider the government instructions on social distancing and virus control to be a "good reason" for delegating a custody appearance by an appointed solicitor to a solicitor outside the firm.

 

Following suspension of CPD requirements for 2019/2020 as a result of the Covid-19 pandemic, please be aware that our CPD requirements for members have been restored and are in place for the practising year 2020/2021.

 

You can find out more about your CPD requirements and all our upcoming CPD and training for 2021 on our website.

CPD requirements for Accredited Paralegals will resume on 1 February 2021.

The Quality Assurance Scheme has restarted (November 2020) following its suspension in April 2020. New reviews will be set up, however reviews will only be undertaken in electronic form until current government restrictions ease.

No extended or final reviews at solicitors’ offices will be arranged at this point. We hope to carry out the review process as timeously as possible, although things may take slightly longer than usual in some circumstances.

Find out more about the Civil Legal Aid Quality Assistance scheme here.

Update as at 6 October 2021

The housing market remains open and home moves are permitted, provided that they can be carried out safely. Travel within Scotland and between Scotland and the rest of the UK in connection with moving home continues to be permitted.

Businesses supporting the housing market and home moves can remain open but working from home is still recommended. Read more on creating and maintaining safer workplaces.

Please follow Scottish Government guidance on moving home.

Communication
  • It is important that members speak to their clients about any issues specifically relating to Covid-19 which may impact on the solicitor’s legal and practical ability to settle their transaction, such as where one or more of the parties requires to self-isolate
  • It is also important to plan ahead where possible and enter into early dialogue with solicitors on the other side of transactions
  • Ensure that clients and colleagues at both your own firm and those on the other side of transactions are aware of any changes to working patterns or contact details as a result of Covid-19
  • In these uncertain times, it is particularly important, that we treat, colleagues and clients, who may be under additional stress and strain, with due respect and courtesy.

 

Adding clauses relating to COVID-19 to missives

Our Property Law Committee has been asked for its view as to whether all missives should include contractual provisions to take account of the risks presented by the virus.

Any such provisions would be a matter of negotiation between the respective parties and it is therefore, for members to take their clients’ instructions on this issue. Given the continuing uncertainties with the impact of Covid-19, and their impact on the particular circumstances of each transaction, we would stress the importance of tailoring each clause to the particular transaction and clients.

Anyone considering negotiating such a clause should think very carefully about doing so and about covering the desired outcome during this time of uncertainty, and the practical issues of applying and enforcing such a clause. Such a clause could create unintended consequences depending on how circumstances change.


Witnessing formal letters

Members may be working from home and this may present challenges such as the availability of others to witness formal letters. Members will be aware that there is no requirement under the Requirements of Writings (Scotland) Act 1995 for missives to be probative. Members holding a Law Society of Scotland Smartcard can also use their qualified electronic signature for this purpose.

Wednesday 15 July 2020

Following discussions with Scottish Courts and Tribunal Services (SCTS), our Civil Working Group, has received confirmation that the Auditor of the Court of Session and the All Scotland Sheriff Personal Injury Court (ASSPIC) will now conduct taxations of judicial accounts by way of tele-conference. You can find out more on our website

Wednesday 1 July

From Wednesday 1 July, Revenue Scotland's main telephone enquiry line will reopen for service, operating revised midweek hours, with experienced Revenue Scotland staff taking calls and providing support whilst working remotely. 

Temporary changes

All LBTT returns (conveyance, lease, or lease review) made from 1 May must be submitted online, using the Scottish Electronic Tax System (SETS). Paper forms, submitted by post can no longer be accepted.

Similarly, from 1 May, Revenue Scotland will no longer be in a position to accept payments made by cheque. Payments must be made by BACS, or where available, Direct Debit.

ADS Repayment claims

ADS repayment claims being progressed by agents on behalf of taxpayers should continue to be made in the usual manner through the SETS system.  Taxpayer claims for repayment of ADS can now be made using the new online claims process.

Three-year lease review returns

For taxpayers completing three-year lease review returns:

  • Three-year lease review returns (including assignations and lease terminations) should continue using the current online process
  • Returns for lease transactions with more than one tenant should be completed using the new online return forms and emailed to Revenue Scotland,

Further information re all of the above and contact details are available on the Revenue Scotland dedicated Coronavirus update page. 

The Coronavirus (Scotland) (No2) Act 2020 Schedule 4, part 7 came into effect on 27 May 2020 and has made changes to the requirements for the personal presence of a notary or solicitor when executing certain documents.

Schedule 4 part 7 states:

(1) The following requirements (however expressed) do not apply -

(a) a requirement for a relevant person to be physically in the same place as another person when that person -

(i) signs or subscribes a document,

(ii) takes an oath, or

(iii) makes an affirmation or declaration,

(b) a requirement for another person to be physically in the same place as a relevant person when the relevant person signs or subscribes a document.

(2) In this paragraph -

“relevant person” means -

(a) a solicitor,

(b) an advocate,

(c) a notary public,

“requirement” means a requirement arising from an enactment or rule of law.

(3) For the avoidance of doubt -

(a) the requirements described by sub-paragraph (1)(a) include a requirement that may be fulfilled by the physical presence of a professional of a type not mentioned in the definition of “relevant person” as well as by a professional of a type that is (for example, it includes a requirement for the physical presence of a solicitor or a registered medical practitioner), but

(b) sub-paragraph (1) only causes such a requirement not to apply in relation to a professional of a type that is mentioned in the definition of “relevant person”.

What this means for notarising documents

Schedule 4 Part 7 has relaxed any rule of law or statute which requires a solicitor or advocate (s9 of the Requirements of Writing (Scotland) Act 1995) or notary (general notarial law) to be physically present when the granter signs a document where physical presence would have ordinarily been needed. It does not affect the ordinary law which requires witnesses to certain types of document such as wills or registerable deeds where there is no need for a solicitor or notary to be present. These legal arrangements are subject to the continuation in force of the Coronavirus (Scotland) (No.2) Act 2020.

The solicitor or notary must be satisfied that the procedure followed will not preclude the acceptance of the document concerned by the jurisdiction where it is ultimately received.

This guidance acknowledges that there are other ways to authenticate the execution of a document remotely but video technology should make execution of documents under section 9 of the Requirements of Writing (Scotland) Act 1995 and notarial documents easier for individuals and notaries who cannot be physically present together for the execution of such documents.

1. Interpretation

In this guidance:

  • “video technology” means any electronic device or process that facilitates communication of visual images and audio in real time between a notary and a remotely located individual, including a remotely located individual who has visual, hearing or speech impairment:
  • “remotely located individual” means an individual who is not in the physical presence of the notary who wishes to have the execution of a document authenticated by a notary or who is blind or unable to write and wishes a solicitor to carry out the execution of a document under section 9 of the Requirements of Writing (Scotland) Act 1995) and ‘individual’ shall be interpreted accordingly.
2. Notarial acts using video technology

(a) A notary may, subject to the conditions set out in paragraph 4, use video technology to certify the execution of a document signed (including by electronic signature) by an individual by means of a notarial act.

(b) Both parties should begin the process by each having an unsigned version of the document, in relation to which notarial acts are to be performed, which can be transmitted one to the other via post, fax, email or other electronic means.

The individual will require to provide the notary with documents necessary to satisfy the notary as to their identity having regard to the Coronavirus Guidance on Non Face-to-Face Identification and Verification published by the Society (available on this page under Practice Updates Non face-to-face identification and verification) which provides guidance on client identity verification using video conferencing.

The notary can use free basic software products that enable video conferencing to assist with the identification and verification process. This is a more manual process and where personal or sensitive information supporting identity verification is sent by email or other electronic means, the notary should consider taking additional steps to mitigate security risks, including, where appropriate, encryption.

To undertake manual identification and verification, the notary should follow this process:

  • Request that the individual sends a clear, legible colour image of their passport / ID document using a suitably secure means, such as encrypted email
  • Arrange to video call the individual. During this call, ask the individual to hold the passport/ID document to their face. By checking the digital copy along with capturing the image of the client with the passport/ID document, the notary should be satisfied that they are one and the same before proceeding
  • In addition to the passport/ID document, ask the individual to provide a digital copy of their valid proof(s) of address
  • The notary should ensure that the rationale for adopting revised identification and verification measures is documented in the client/matter level risk assessment and to risk grade the relationship accordingly
  • Policies, controls and procedures should be revised to take into account the new process

Should the individual be unable to satisfy these requirements and/or present a higher risk of money laundering, the firm should ensure that they are satisfied that those risks are addressed before proceeding. This may include obtaining further verification of identity or undertaking other measures as stipulated under r.33 (5) of the Money Laundering Regulations 2017.

(c)  Once both parties have an unsigned copy of the relevant document the notary should take steps during the video conference to ensure that the document that they have sight of is an exact copy of the same document that is before the individual. This can be done by, for example, having the individual read out the document or by having the individual share their screen.

Once the notary has confirmed that each document is the same, the notary should then either place the individual on oath or take the solemn affirmation or receive the statutory declaration and observe the signature or requisite act of the individual.

The signed document must then be sent to the notary to allow them to notarise it and this can be done is a number of ways:

i) If the document is an electronic document and has been electronically signed by the deponent it can electronically notarised upon receipt;

ii)If the document is a traditional, hard-copy document and has been signed by traditional means that document can be returned to the notary by post or courier for them to notarise;

iii) In order to fulfil the intention behind the legislative change it will be acceptable for a traditional document that has been signed in a traditional manner to be scanned and returned to the notary to notarise upon receipt.

If option (iii) is considered the most appropriate or necessary process to undertake it would be best practice to request that the original, traditionally signed document is kept by the individual until such time as the current movement restrictions are no longer in place as this will allow for the document to be provided, when safe to do to so, to the notary to form part of their file and audit trail.

The notary should also take care when producing a narration (see 2(i) below) to ensure that if the process in (iii) is followed that it is clear that they have notarised a ‘copy’ rather than an ‘original’ document.

(d) If practicable the notary or where applicable the solicitor must, having obtained the prior consent of the individual, record the video conference and retain that recording for a period of 10 years.

(e) Where it is not practicable to record the video conference the notary shall, having obtained the prior consent of the individual, take screen capture photographs of the individual and his or her identity documents.

(f) The notary must use all reasonable endeavours to establish that this procedure will result in the acceptance of the document in the receiving jurisdiction. If the document will not be accepted in the receiving jurisdiction the notary must so advise the individual.

(h) The notary should not be considered, and should not be described as, a witness to the document certified under this guidance.

(i) The notarial certificate should narrate the exact procedure followed by the notary. The certificate must not state or imply that the notary was physically present with the individual when the document was executed. The procedure followed, including a description of the type of video technology used, should be recorded.

(j) Where the document has been sworn/declared before a notary by way of video conference rather than in person, appropriate wording should be inserted in the declaration to confirm that.  

For example:

“Declared by way of video conference

 

Signed:  [Signature of deponent]

This:  ______________ day of ___________ 20XX

At:  [insert place of signing by deponent]

before me [insert name of person authorised to administer the oath/declaration], via video conference which I attended from [my address at] [insert address].”

3. Requirements of Writing (Scotland) Act 1995 section 9

(a) A solicitor may use video technology to subscribe a document or sign a testamentary document under section 9 of the Requirements of Writing (Scotland) Act 1995.

(b) The requirement under section 9(2) that ‘subscription or signing by a relevant person under subsection (1) above shall take place in the presence of the granter’ does not apply in terms of Schedule 4 Part 7 of the Coronavirus (Scotland)(No2) Act 2020.

(c) The solicitor must ensure that the granter and the solicitor have complied with the terms of section 9(1) by video technology and that the other requirements of this guidance regarding client identity verification using video technology have been complied with.

4. Refusal to perform notarial act

A notary who is requested to perform a notarial act using video technology may refuse to do so where the notary is not satisfied that the notarial act, if performed, would comply with this guidance.

5. Saving of existing requirements

This change in the Society’s guidance does not affect the application of the existing guidance concerning confirmation of the understanding of a deponent or the manner of administration of an oath or affirmation.

6. Effect and Expiry

This guidance comes into effect on 27 May 2020.

This guidance shall cease to have effect on the repeal of Schedule 4 part 7 of the Coronavirus (Scotland) (No2) Act 2020.

 

Personal Injury practitioners have been working together to produce a ‘ways of working’ agreement to support progress in cases which might otherwise be stalled as a result of the coronavirus outbreak. Find out more and access the agreement.

Under new guidance, effective from 1 May 2020, SCTS will begin to process Commissary business. Applications should be sent in hard copy to the relevant hub court. Court users are warned that due to significantly reduced staff resources, commissary applications will take longer to be processed.

We appreciate that in line with current Government restrictions, solicitors are limiting physical contact with clients. A number of options allowing solicitors to identify and verify their clients during this time are available.

  1. Client identity verification software
  2. Video conferencing tools
  3. Email and third-party validation

Find out more about the available options.

The Scottish Government has provided guidance in relation to building standards in the context of the coronavirus. Full details can be found on the Scottish Government website.

Best practice for execution of Powers of Attorney when it is not possible to meet with the client


Sections 15, 16 and 16A of the Adults with Incapacity (Scotland) Act 2000 require that the solicitor certifying capacity has interviewed the granter immediately before the granter subscribed the document.

We appreciate that, in certain situations, solicitors may not be able to meet clients, or may wish to avoid meeting them, for the safety of their clients, themselves and others. At the same time they will, as far as possible, wish to maintain accessibility to the legal services that the public requires.

It will rarely be appropriate to delay complete fulfilment of an instruction to have a Power of Attorney granted and registered. We have therefore been looking at ways that solicitors are able to discharge their obligations and, with the agreement and approval of the Public Guardian, the following procedure may be adopted to satisfy the legislative requirements.

  1. The solicitor would require to provide the granter with the Power of Attorney document in advance either by post or, where the client has facilities to print it off, by email (preferably a PDF version which cannot be altered)
  2. The granter of the document should not sign the document in advance of the interview.
    The granter must show the solicitor via video conference that the document is unsigned prior to the interview
  3. The interview will take place and all the normal requirements for such an interview should be fulfilled, during the video conferenced interview
  4. If, following all normal criteria, the solicitor is satisfied that the document can properly be certified, then, at the solicitor’s request, the granter should sign the document and the witness should sign as appropriate. The granter should then show the solicitor the signed copy power of attorney document
  5. The client should be instructed promptly to return the hard copy signed copy to the solicitor: see below.


The interview of the granter can take place by way of video conference between the solicitor and their client. This may be Skype, Facetime or other video conferencing means. While it is not essential that a Power of Attorney document is witnessed, as the document becomes self-proving at the point of registration, it would be prudent that the document is witnessed by someone attending with the client, where possible. The witness, of course, cannot be the attorney or one of the proposed attorneys.

Where it is possible to have a witness attend with the client, the solicitor should involve the witness in the process, as viewed by the solicitor.

Once the document is signed the client should arrange to return the original, hard copy signed document to the solicitor as soon as possible. A photocopy or scanned copy will not suffice for this purpose, as sections 15(3) and 16(3) of the Act sets out that a continuing and/or welfare Power of Attorney shall be valid only if it is expressed in a written document which is subscribed by the granter.

The solicitor can only register the document once the principal, wet ink copy, is received. The certificate requires to be incorporated into that original document. It should be signed by the certifier on the same date as execution by the granter and attached to the original document once it is received.

It is a matter of professional judgement for a solicitor asked to certify as to whether these arrangements are appropriate in any individual case; and, if these arrangements are followed, whether the solicitor can thereupon properly certify. This guidance refers only to the practical methodology for signing and certifying at a distance from the granter. It will mostly only be appropriate where the client is an existing client and the solicitor is satisfied that the client has capacity, there is no undue influence, and there is no other vitiating factor.

Where a new client wishes to instruct a solicitor in a Power of Attorney matter the same principles apply and solicitors will need to exercise their own judgment as to whether or not it is appropriate to conduct the entire piece of business using video technology. It is not to say that it would not be compliant with the relevant legislation. However, the professional obligations to ascertain relevant capacity, and to ensure that there is no undue influence or other vitiating factor, can prove to be more difficult when no physical meeting takes place. It is for those reasons that caution should be exercised in proceeding in this way for new clients.

The procedure recommended above does not necessarily preclude a solicitor as certifier being satisfied by other means that the document has been signed by the granter, and signed immediately after the interview, in the absence of impersonation, undue influence, or other vitiating factor. In a particular case, for example when the granter is an existing client personally seen recently (say, within a month), the solicitor might feel entitled to rely upon assurances (or even an assurance) by telephone. However, this cannot be a “balance of probabilities” or similar assessment. Certification is the protection against all vitiating factors. Certifying solicitors must be satisfied, in each individual case, that they can properly certify, and that the decision to do so can be robustly justified if that should subsequently become necessary. There may be occasions when the solicitor concludes that it is inappropriate to certify, even when the procedure recommended above for use of video link is followed. The risks will be greater if the interview not only is not conducted face-to-face, but the solicitor cannot see what is happening.

Our current Guidance on Continuing and Welfare Power of Attorney and Vulnerable Client Guidance should be referred to and followed as necessary.

Best practice for taking instructions and arranging execution in relation to wills when it is not possible to meet with the client

Current restrictions prevent solicitors from meeting their clients face to face. At the same time, they will, as far as possible, wish to maintain access to the legal services needed by the public; and this may be particularly important where a client wishes to make or alter a will. We have put together some best practice notes for taking instructions and arranging execution in relation to wills when it is not possible to meet with the client.

It will rarely be appropriate to delay complete fulfillment of an instruction to have a will prepared and signed and accordingly we have been looking at ways that solicitors are able to discharge their professional obligations. As such, we have produced the following temporary guidance during this time - this will be removed at a future date.

Where instructions have already been taken

a) For clients whose instructions have been given to a solicitor prior to either the solicitor or client having to self-isolate the will can be posted (or emailed as a PDF to avoid alteration) to the client for signing. This is based on the assumption that prior to the period of self-isolation (of either party) the solicitor had the opportunity to assess the client’s capacity and susceptibility to undue influence/circumvention and had no concerns in that regard.

The client can be given directions to complete execution of the will in the normal way if a suitable person is available to witness the client's signature in the client's presence and the normal testing details can be completed. The will can then be returned to the solicitor in the normal way if the client chooses to do so.

b) It may be however that a suitable witness is not available and able to be physically present when the client is in a position to sign the will. It may then be feasible to arrange a video link with the client. If this can be done, the solicitor can witness the client signing each page (taking care that the solicitor is not excluded from being an effective witness, for example by being appointed executor directly or through a trust company)or have someone else on the video call do so. The further opportunity may then be taken to assess the capacity of the client and, using their professional judgment, the solicitor can consider whether any undue influence is being exerted on the client.

The will can then be returned to the solicitor. We consider that the witness, as long as they have seen the client actually sign each page, can on receipt of the signed will, legitimately sign and complete the signing details on receipt of the signed will. We would anticipate that this would be deemed to form one continuous process as required by the legislation. However, as set out in the next paragraph, the key point is that client will have signed a fully valid will.

c) If the isolation of the client is such that no witness is available physically with the client and there are no video facilities available, the client can be told that their signature alone at the end of the will is effective to make a valid will, which can then be returned to the solicitor after signature. If such a will remains in that state until the death of the client, while it will be valid, it will be necessary as part of the Confirmation process to "set up" the will as having been signed by the client, by affidavit evidence as to their signature. For this reason, it will generally be preferable to replace such a will by a formally executed version when the current conditions no longer prevail.

Taking instructions.

d) If written instructions have been received from an existing client, these can be acted upon, but should be subject to confirmation at least by telephone and ultimately ideally by the video link suggested above.

e) If instructions are received from or attempted by a new client, then a meeting between solicitor and clients can take place over video conferencing facilities but there are still requirements on the solicitor to ensure that they are satisfied that the client has capacity and is not being unduly influenced into providing instructions on a will/an amendment to a will. We appreciate that these can be difficult determinations to make however we trust that each solicitor will exercise their own professional judgement when making these decisions. If the solicitor is any doubt they should decline instructions.

f) If the client is completely new to the firm then identification checks can be carried out using a video conferencing facility and by having the client hold up identity documents to allow the solicitor to view them. The solicitor could then take a screenshot of the video conference for their file or, where possible, have the client scan and send in the identity documents that they had shown to the solicitor. For further information on identity checks on clients please see here, under practice updates, Non-face to face identification and verification.

g) Given the need for identity checks, assessments of capacity and/or checks for undue influence to be carried out it is not possible to take instructions solely over the telephone and then send a document to a client for signing. Despite the very real, practical difficulties that the profession face in the current climate we are unable to waive the requirement for these checks to be carried out.

h) In a final possible case, where no possible visual contact at all can be made, what a solicitor can do is limited. However, there is nothing wrong in telling an actual or prospective client that a testator can write out clearly their own will or other testamentary instruction. Solicitors can confirm that subscription alone, while not ideal, will generally create valid testamentary instructions; and may also supply details of what is required for formal validity (that is subscription on each page before a single witness (who need not know the contents of the document) and who should sign on the last page after the testator's signature and to which should be added the date and place of signature and the witness's full name and address.

i) This should not be taken as any kind of general encouragement towards the creation of "homemade" wills, which have generated much difficulty in many cases over the years and of course such a process does nothing to address capacity, undue influence and similar matters. In the present circumstances and for many people however it may be better to give such limited advice to enable wills to be created rather than for prospective testators to have nothing at all in place.

For any solicitor undertaking this type of work we would remind you that there is Vulnerable Client Guidance should be available on our website.

Please note that we have also produced a best practice for those undertaking power of attorney work which can be found on our dedicated COVID19 page under practice updates, power of attorney. This is supplementary to our Guidance on Continuing and Welfare Powers of Attorney.

For guidance on notarial execution, further information can be found here under practice updates, Notary public – execution of document.

Business support

You can find out more about the support available from the Society and our partners during the Coronavirus outbreak, as well as available government funding, on our dedicated business support section on our website. You can also read more about the £2.2m package of financial support for members, announced in April 2020, which saw a reduction in fees to help you through the impact of the Covid-19 outbreak.

Trainees and students

We have received a number of queries about the remote supervision of trainee solicitors and the ability of trainees to get the continued training, experience, and exposure while remote working is required.

To assist training managers and supervisors, we have produced guidance on remote supervision, full of hints and tips on supporting trainees to work from home.

Each legal business is different, so there is no one-size-fits-all approach. We note that many organisations will be reacting to events quickly and that communication about what is working/what isn’t working is vital. We would recommend that training managers and supervising solicitors use their professional judgement to decide what works for them. This might include:

  • daily calls
  • regular email check-in throughout the day
  • review of work by more than one person if possible (with feedback attached)
  • making yourselves approachable virtually and by phone as a supervisor to be asked questions

PQPRs can be done either over the phone or via video-conferencing. These can then be uploaded as normal to the Society’s portal.

The requirement to work from home for an extended period should not impact the ability of a trainee to reach the standard of the Qualifying Solicitor and qualify in due course. 

We strongly advise all legal employers to follow UK and Scottish Government guidance and support home working wherever possible.

Can training units utilise the UK Government’s Coronavirus Job Retention Scheme, also known as furloughing, for trainees?

We have had a number of queries relating to the potential temporary suspension of training contracts. In the normal course of events the answer is no. Traineeships ought to be continuous over a period of two years (or equivalent if part-time).

However, we believe that the UK Government’s recent announcement regarding the Coronavirus Job Retention scheme may make this possible, assuming that trainee solicitors meet the criteria for reimbursement set out by UK Government. Both sets of Admission as a Solicitor (Scotland) Regulations (2011 and 2019) allow for trainees to be absent for a period of no greater than six months in the aggregate. Whilst this has in the past been used for maternity leave or long-term sick leave we believe that furlough – supported by the CJRS – could be viewed in the same way. We would encourage training units considering utilising these provisions to monitor the UK Government’s website as it is likely there will be updated guidance about how this scheme can be accessed, for what types of employee and what changes need to be made to employee contracts.

We leave it to the professional judgement of training managers to decide whether or not – at the end of the training contract – the trainee has met the PEAT 2 Outcomes and is a fit and proper person and whether or not the traineeship can be discharged after the usual 24 months or needs the training contract to be extended.

What about trainee remuneration?

For a number of years, the Society has rejected any training contract that purports to pay less than the Living Wage, as set by the Living Wage Foundation outside of London. Whilst some trainees may be paid more than this minimum rate, all trainees should be paid at least that rate. There has been no change to this policy and applies to furloughed trainees.

What do I need to do if I am placed on furlough?

Please let us know the date that you were placed on furlough. We will update your record to opt you out of the PEAT2 Quarterly Performance Review (PQPR) reminders. You will not be required to undertake a PQPR whilst you are on furlough. Please email: legaleduc@lawscot.org.uk to let us know.

When you return to work after furlough please get in contact with us and we will amend your record once again. We will be able to advise you at that point whether or not you require to undertake the PQPR that you have missed whilst on furlough.

For trainees who reach the end of their training contract whilst on furlough: If your supervising solicitor/training manager is satisfied that you are fit and proper and have met the PEAT 2 Outcomes they will need to contact us to discharge the training contract at that point. If they are not your training contract may need to be extended.

In either case, we will be able to talk them through the options and we would encourage them to get in touch with us in advance of the end of the training contract.

If you have any queries  please email us at legaleduc@lawscot.org.uk

If I am placed on furlough, will my traineeship be extended?

It is possible for a trainee to be absent for up to six months of the training contract and, at the end of your training contract, it is down to the professional judgement of your supervising solicitor/training manager to decide if your absence from the training contract can be disregarded or needs to be added to the end of the training contract. This will come down to a judgement on whether or not you have met the PEAT 2 Outcomes and therefore the standard of a qualified solicitor.

If I have to take time of for reasons such as sickness or bereavement, in addition to furlough, will my traineeship be extended?

In addition to six months off work due to furlough, trainees may also be able to miss a further one month from their traineeship due to exceptional personal circumstances such as illness or bereavement.

This would bring the maximum period of time missed during a traineeship to seven months without a traineeship having to be extended.

Can trainees work for other organisations whilst on furlough?

A number of trainees have come forward to ask us if it is possible to work for another organisation whilst furloughed. The Corona Virus Job Retention Scheme does allow for this, according to the updated guidance on the UK government website. Furloughed individuals are not allowed to work for their employer whilst on furlough, but can do other work.

We are aware of some trainees who – in particular – wish to return to old roles for a short-time in industries that need additional assistance during this time e.g. roles in the National Health Service, care homes, working in supermarkets and other such shops, farming etc.

The Admissions Sub-Committee has considered this matter and has agreed that it is possible for a trainee to take on another role whilst furloughed, so long as the following criteria are met:

  • The trainee has the consent of the training unit.
  • That the role is compliant with the Corona Virus Job Retention Scheme guidance (and any updated guidance). The guidance is available here - see section ‘Working for a different employer’.
  • That any such role is ceased before the end of the period of their furlough (that is they do not have two roles when training resumes).

Alongside the information provided on this page, we have received a lot of questions from trainees on furlough on a variety of issues and have answered the most common questions in a dedicated FAQ section, which can be found here.

The FAQ section will continue to be updated with additional questions as we receive them. A contact form is available on the page for furloughed trainees to submit questions that they would like added to the FAQs.

Can I reduce my trainee’s hours?

Yes. This is competent under the training contract assuming that the contract remains compliant with the Society’s policies on trainee remuneration (i.e. trainees are required to be paid at or above the living wage outside of London as set by the Living Wage Foundation. The same is true of any furloughed trainees).

If trainees are placed on a 4-day week/80% hours whilst the Coronovirus Job Retention Scheme is in place, and providing that the combined number of days does not total more than six months in total, organisations can disregard these absences from the training contract providing that the training firm is satisfied that trainee has met the PEAT 2 Outcomes and has reached the standard required at the end of the training contract.

If the organisation thinks that there has been an impact on the trainee’s meeting of the Outcomes, and the trainee needs more time to meet them, then they can apply to us to extend the training contract. If training managers have any questions, they should contact legaleduc@lawscot.org.uk. Again, the Admissions Sub-Committee will keep a watching brief in this area.

Can a trainee be made redundant?

We have a policy on the termination of training contracts for the reason of redundancy based on QC opinion. The policy statement is clear that training contracts cannot be terminated by employers for the reason of redundancy and other avenues should be considered prior to redundancy. The only organisation who can terminate a training contract is the Law Society of Scotland.

We understand that the current situation may lead to less work for trainee solicitors to undertake. Organisations may wish to consider utilising funding via the Coronavirus Job Retention Scheme (see above).

Training units are encouraged to read the policy statement and consider all other options prior to redundancy. If having done so, they wish to make a trainee solicitor redundant, they are required to make a submission to the Admissions Sub-Committee of the Law Society of Scotland.

The Admissions Sub-Committee has noted that the Mandatory Ethics Course can now be taken between month 9 and month 24 of the training contract (rather than the usual, between months 9 and 15).

We have had confirmation from the Lord President’s Office that the Lord President has no objections whilst the normal court process is interrupted due to the pandemic, for sitting in on video (or indeed) telephone hearings to count for sitting in purposes provides it meets all other existing criteria in the Regulations for such hearings to be counted.

More information on access to courts can be found on the Scottish Courts & Tribunal Service website

In the meantime we would urge members to heed public health advice and the Society’s guidance above when considering sending trainees to court to sit in and consider the latest advice regarding attendance at court at this time (see above) particularly exercising your judgement on the number of practitioners needing to attend and keep that to essential only.

We are aware that LLB and Diploma students may have questions and concerns about the potential effect on the traineeship job market as a result of the Coronavirus outbreak.

Our trainee statistics, which we publish annually around the end of January, provide the best indication of the impact that coronavirus has had on the traineeship market. As we move into 2021, we will continue to liaise with employers and deliver students as much support and information as possible. 

If you are a final year student, you will likely be considering your next steps and whether to apply for the Diploma. This is an important decision for all students as it is the indicator of whether you intend to qualify as a solicitor in Scotland or take a different career path. The Diploma, unlike the LLB, has a validity period of five years from the date it is awarded and you should bear this in mind when applying. This validity period, which was increased on 1 November 2019, should allow students a degree of flexibility in securing a traineeship within the set timeframe. For more information on the Diploma and its validity, please visit our website.

Please keep a look out for updates throughout the application process on our website and on social media. If you are a Law Society Student Associate, you will also be kept updated in our regular news bulletin.

If you have any questions or concerns regarding the Diploma, please contact your university and chosen diploma provider or get in touch with Darren Kerr at the Society. You can also sign up to be a Student Associate on our website.

We appreciate that you will have concerns about the impact of Covid-19 on your university study and assessment.

Your university will remain your key source of information and direction in terms of your study and assessment arrangements however we are in correspondence with each of your programme providers regarding continued study and assessment during this period. 

All LLB students who wish to progress to the next stages of professional legal education following the LLB require to demonstrate that they have achieved all of the Foundation Programme Outcomes. Whilst many providers of the accredited LLB do use examinations to assess whether individuals have met the outcomes, there is no requirement from the Society to use examinations, online or otherwise, as other forms of assessment are available. We do note that many LLB providers choose to examine students in 1st and 2nd year although this is not mandated by the Society. We also cannot mandate that a provider assesses achievements of outcomes in a different format or at a different time.

We continue to liaise closely with universities in relation to exams and proposed assessments, as was the case throughout 2020. If you have a particular issue with the assessment currently proposed by your LLB provider please contact them to discuss this. We understand that providers are considering the general and individual issues that may arise from assessment during the pandemic and are working hard to mitigate them.

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