It is essential that trainees and supervisors familiarise themselves with this trainee guidance, which clarifies what work can and cannot be carried out during the traineeship.
Trainees should not work;
- without adequate training,
- without appropriate supervision,
- without having gained sufficient knowledge and experience in the area of work which they are seeking to carry out.
Trainees 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 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 highlighted below.
If you have any questions regarding trainee guidance then you can email Professional Practice on firstname.lastname@example.org. 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 email@example.com.
As a trainee there are a limited range of functions which you can perform.
You can sit with Counsel in any Court including the High Court and the Court of Session.
You cannot represent a client in the Criminal Courts, and in Civil cases you can only appear in certain circumstances. (See under the heading “Specific Areas of Work” below). You cannot grant Legal Advice & Assistance as you are not yet a solicitor
Any business card which is printed should have the description "Trainee Solicitor" after your name.
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 still 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 Justice of the Peace Courts, although it is 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 Court.
You can sign any document which requires to be signed by a solicitor. In particular you can sign Court (and similar) documents as a “Solicitor”.
It is still necessary to have the words "Trainee Solicitor" on a business card.
You can apply for and become a Notary Public once you have been admitted to the Roll of Solicitors and have been granted a restricted Practising Certificate.
(1) Sheriff Court Representation
The Courts Reform (Scotland) Act 2014 section 72 introduced a new “Simple Procedure” for proceedings for payment of a sum of money not exceeding £5,000 and certain other actions where the value does not exceed £5,000.
All existing Small Claims and Summary Cause actions, i.e. those raised prior to 28 November 2016, will continue to be subject to the Small Claims Rules and Summary Causes Rules.
(A) Actions raised prior to 28 November 2016
Small Claims, Summary Cause and Ordinary Cause
Lay Representation is complex because there are two separate concepts of Lay Representation.
Firstly there is a “lay representative” in terms of Chapter 2A of the Act of Sederunt (Small Claim Rules) 2002, 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 an “authorised lay representative” in terms of Chapter 2 of the Small Claims Rules and the Summary Cause Rules.
We suggest that a trainee (without a practising certificate) is neither a “lay representative” nor are they an “authorised lay representative” unless the trainee could argue that the litigant was not paying the practice unit a fee for the court appearance.
A trainee with a practising certificate may appear in these cases.
(B) Actions raised after 28 November 2016
A trainee solicitor is defined as a legal representative in terms of Rule 2.2(2) of the Simple Procedure Rules. This includes both first and second year trainees and includes those who are admitted and hold a practising certificate and those who do not. Therefore all trainees may represent clients in Simple Procedure cases.
Summary Cause and Ordinary Cause
The Summary Cause and Ordinary Cause Rules remain unchanged and a trainee requires a practising certificate to appear.
(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”.
A solicitor would clearly be entitled to appear under s.64(j) above.
We think 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.
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. 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 the consent of the client should be obtained.
(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.
(5) Employment Tribunals
Solicitors can represent clients at Employment tribunals and that would include trainees with a practising certificate. There is no legislation to prevent trainees without a practising certificate appearing at Tribunals though their status should be declared at the outset. Such trainees who are seeking to appear at a Tribunal may also wish to check the position with the Tribunal clerk.
(6) Settlement Agreements in Employment Law
In terms of the Employment Rights Act 1996, section 203(3), an employee must have received advice from an independent relevant adviser as to the terms and effects of the proposed agreement before the employee signs the agreement. In terms of section 203(3A)(a) a relevant independent adviser can be a “qualified lawyer” with professional indemnity insurance.
A trainee without a practising certificate could not be a “qualified lawyer” and therefore cannot give advice on a settlement agreement. A trainee with a practising certificate is a “qualified lawyer” and therefore can give advice on a settlement agreement and can sign the settlement agreement confirming that advice has been given.
(7) 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 trainee with or without a practising certificate could appear.
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. A trainee (with or without a practising certificate) could appear but we consider 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.
(8) 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 we consider that such responsibility should not be placed on a trainee solicitor with a restricted practising certificate and therefore a trainee should not sign the certificate.
From 3rd April 2017 the Public Guardian will no longer accept a prescribed certificate signed by a trainee solicitor. This applies to Power of Attorney documentation signed after this date.
(9) 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 any trainee can visit a client in custody.
(10) Police Station Procedures and VIPER
The VIPER (Video Identification Parade Electronic Recording) scheme procedure is in two parts. A trainee (whether admitted and with a practising certificate or not) could attend for both Parts 1 and 2 of the procedure.
Care should be taken on what is covered by Legal Aid.
(11) Lands Tribunal and Lands Valuation Appeal Court
The Lands 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.”.
A trainee with a practising certificate could appear. A trainee without a practising certificate could appear with leave of the Tribunal.
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.
(12) 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.”.
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 a trainee without a practising certificate to make application to the Sheriff to appear in a representational capacity.
(13) Attendance at Court with Counsel/Advocate
A trainee (with or without a practising certificate) can attend Court with Counsel.