Code of Conduct for Public Defence Solicitors in Scotland
Purpose of the Public Defence Solicitors’ Office
The purpose of the Public Defence Solicitors’ Office is to provide proper, appropriate, timely and independent advice and representation to persons subject to criminal investigations or criminal proceedings.
Duties to the Client
A Public Defence Solicitor owes the following duties to each client: –
To do his or her utmost, consistent with the solicitor’s duty to the court, to promote and work for the best interests of the client and to ensure that the client receives a fair hearing.
To provide the client with fearless, vigorous and effective defence and to use all proper and lawful means to secure the best outcome for the client.
To act with reasonable diligence and promptness in handling the affairs of the client, which shall include duties of disclosure of all relevant information in the case to the client and of keeping the client informed of the progress of the case.
Duty to Act with Integrity and Independence
An employee shall act with honesty and integrity in carrying out his or her duties on behalf of the Public Defence Solicitors’ Office. He or she must never knowingly or recklessly give false or misleading information.
A Public Defence Solicitor has a duty to maintain his or her professional independence and not to allow this to be compromised by prosecuting authorities, the courts, the Scottish Legal Aid Board, clients or any other person or body.
Duty to Act Impartially and to Avoid Discrimination
Employees shall treat all clients fairly, reasonably and without discrimination. An employee must not therefore discriminate directly or indirectly against any person on grounds of race, colour, ethnic or national origin, sex, marital status, sexual orientation, disability, age, political persuasion or religion.
A Public Defence Solicitor must accept instructions from any eligible client who is not already legally represented in the relevant proceedings, provided that:
He or she can competently act.
No significant risk of conflict of interest arises.
There is no substantial reason why the best interests of the client would not be served.
No right of withdrawal would immediately arise under paragraphs 21 or 22 below.
No issue arises in terms of Paragraph 28 below (excessive workload provisions).
A Public Defence Solicitor shall provide advice, assistance or representation to a client only where he or she is competent to do so. Competence requires such legal knowledge, skill, experience and preparation as is reasonably necessary to properly represent the interests of the client.
A Public Defence Solicitor shall not refuse to advise, assist or represent a client because of the nature of the allegation or the client or because of the solicitor’s personal views.
Duty of Confidentiality
All employees of the Public Defence Solicitors’ Office are subject to the provisions of Section 34 of the Legal Aid (Scotland) Act 1986, as amended. As such, subject to Paragraph 10 below, an employee shall keep all information about a client confidential unless either the client specifically waives his right of confidentiality in this regard, or one of the exceptions set out in section 34(2) of the Act applies.
A Public Defence Solicitor is bound by the rules of legal professional privilege and any relevant rules of professional conduct or otherwise setting out circumstances where the duty of confidentiality may be overridden.
Duty to the Court
A Public Defence Solicitor must never deceive, or recklessly or knowingly mislead, the Court.
As an officer of the Court, a Public Defence Solicitor should support the authority and dignity of the Court by strict adherence to codes of professional behaviour and by manifesting a professional attitude towards the judge, prosecutor, witnesses and others in the courtroom.
Duty to avoid Conflicts of Interest
A Public Defence Solicitor shall not act for two or more clients in any matter where there is a conflict of interest, or a significant risk of conflict of interest, between the clients, or for any client where there is a conflict between the interest of the client and that of the Public Defence Solicitor or the Public Defence Solicitors’ Office.
Without prejudice to the preceding paragraph, a conflict of interest arises where the interests of a client require the Public Defence Solicitor to act in a way which is contrary to the interests of another client e.g. where the duty of confidentiality owed to a client comes into conflict with the duty to disclose all relevant information to another client.
Where a Public Defence Solicitor provides advice, assistance or representation to a client and a conflict or a significant risk of conflict arises between the interests of two or more clients, or the Public Defence Solicitor and a client, then he or she must cease to act.
Duty not to Offer or Accept Payments
An employee shall not pay any fee, commission, inducement, gratuity, gift, benefit or other form of compensation to a client or to a witness save for payments made from PDSO funds in respect of proper witness expenses, fees of expert witness, or similar costs.
An employee shall not accept any fee, commission, inducement, gratuity, gift, benefit or other form of compensation relating to his or her representation of a client of the Public Defence Solicitors’ Office, save for receipt of professional remunerations or other payments from the Scottish Legal Aid Board.
Relationship with the Legal Profession and Others
A Public Defence Solicitor shall not practice law other than in the performance of his or her duties as an employee of the Public Defence Solicitors’ Office, or engage in any other occupation, without express written permission from the Director.
All employees shall endeavour to maintain relationships with the wider legal profession and other agencies in the criminal justice system based on courteousness, mutual respect and professionalism.
Change of Legal Representative
If a client wishes to change legal representative, then a public defence solicitor shall, whenever necessary, advise the client as to the relevant rules and procedures.
Withdrawal of Legal Representative
A Public Defence Solicitor shall cease to act for a client where:
A conflict or a significant risk of conflict of interest or breach of confidentiality arises.
A conflict or a significant risk of conflict arises between the client’s interests and the solicitor’s duty to the Court.
The client withdraws instructions.
A Public Defence Solicitor may cease to act for a client where:
The client’s behaviour towards the Public Defence Solicitor or any other employee is violent, threatening or abusive.
There is some other substantial reason for withdrawal, approved by the Director of the Public Defence Solicitors’ Office.
If a Public Defence Solicitor ceases to act then he or she shall give reasons to the client for so doing, except in the case of 21(c) above, and shall take steps to intimate this fact to the client without delay.
Public Interest Disclosure
If an employee believes that he or she is being required to act in a way which:
Is illegal, improper or unethical
Is in breach of professional rules
May involve maladministration, fraud or misuse of public funds
Is otherwise inconsistent with this Code, the Law Society of Scotland’s Code of Conduct, or The Scottish Legal Aid Board’s Code of Practice,
he or she must report the matter to the Director of the Public Defence Solicitors’ Office or, where that may be inappropriate (e.g. where the Director is the cause of the concern), to the Chief Executive of The Scottish Legal Aid Board.
Where an employee reports a matter in accordance with Paragraphs 24 or 28 of this Code but believes that the response is unreasonable or is not forthcoming, he or she shall report the matter to the Convenor of the Audit Committee of the Scottish Legal Aid Board or to its Chairman. If such further reporting does not result in a satisfactory response, he or she shall report the matter in writing to the Head of Access to Justice, Justice Department, Scottish Executive, Saughton House, Broomhouse Drive, Edinburgh, EH11 3XD.
If any of the circumstances in Paragraphs 24 or 25 arise, a Public Defence Solicitor must also consider whether it is appropriate to continue to act for a client.
These provisions do not override the rules of legal professional privilege.
If a Public Defence Solicitor considers that due to excessive caseload the acceptance of any further instructions from new clients might reasonably lead to inadequate representation of existing clients, he or she shall bring this to the attention of the Director of the Public Defence Solicitors’ Office.
The Director, on receiving a report under Paragraph 28 above, shall (regardless of whether or not he believes that there is any merit in that report) make the circumstances known to the Chief Executive of The Scottish Legal Aid Board, who shall investigate the matter.
If the Public Defence Solicitor who made an excessive caseload report under Paragraph 28 is not satisfied that this report has been given appropriate consideration, he or she may then pursue an additional line of reporting in terms of Paragraph 25 above
Standards of Conduct
An employee shall not do anything to bring the Public Defence Solicitors’ Office into disrepute or to diminish public confidence in the criminal justice system in the course of their employment or otherwise.
An employee who is a member of a professional body shall comply with the rules of conduct and any guidance issued by that body.
All employees must apply any professional rules or guidance, approved by the Law Society of Scotland, relating to the treatment of victims and witnesses.
An employee shall not misuse his or her position or information acquired in the course of his or her duties to further his or her own private interests or those of others.
The terms, conditions, policies and procedures contained in the Scottish Legal Aid Board personnel manual and the Public Defence Solicitors’ Office manual shall apply to all employees, except where varied or overridden by an express provision in this Code.
A complaint against an employee shall be dealt with under the procedures laid down by the Scottish Legal Aid Board and the Public Defence Solicitor’s Office.
A complaint against a Public Defence Solicitor may be dealt with under the procedure laid down by his or her professional body, as well as under the procedure in paragraph 36 above.
Applicability of Code to External Suppliers
The provisions of this Code shall also apply to any external supplier of services instructed to provide services to clients on behalf of the Public Defence Solicitors’ Office.