Solicitors will be aware from previous bulletins of the Law Society’s long-standing and ongoing campaign to have criminal legal aid fees restored following severe cuts since 2008. The Law Society believes a fair, effective, and efficient criminal legal aid system is fundamental to the democratic administration of justice.

 Solicitors will also be aware of developments in recent weeks whereby solicitors who provide legal representation to individuals who are before the criminal courts, and where such legal representation is funded through the current criminal legal scheme, have signalled an intention to withdraw from Criminal Legal Aid panels, not accept new instructions and/or withdraw such legal services where instructions have already been received and legal aid assignments made.   

 The purpose of this guidance is to outline the professional obligations of solicitors that need to be adhered to in circumstances in which instructions have already been received from a client and the solicitor-client relationship established in respect of a matter that is before the criminal courts.

 Solicitors' professional obligations

A solicitor’s professional obligations are to be found primarily in the Solicitors’ Acts 1954-2015 and the Solicitor’s Guide to Professional Conduct (4th ed., 2022). The ‘professional principles’ of legal practitioners are to:

• act with independence and integrity;
• act in the best interests of their clients;
• and maintain proper standards of work.^[1]

On the issue of independence, the Guide to Professional Conduct (at p. 16) states as follows:

In relation to clients who are in custody, there is a specific statutory restriction on legal practitioners withdrawing from the case without obtaining permission from the court before which that client is next scheduled to appear.^[2]

 Solicitors are required to exercise independent judgment as to what is in the best interests of their client in the circumstances of their individual case and to advise their client accordingly. In most circumstances, unless there has been a breakdown in the solicitor-client relationship, it will be in the best interests of the client for a solicitor to continue to act in a case until its conclusion.

In the event that a client instructs their solicitor to apply to have their case adjourned to a future date, the solicitor will need to inform their client of the fact that the trial judge, in the exercise of their independent judgment, may not accede to that application. In making such a decision, a judge will have regard to the interests of other parties and other public interest concerns consistent with the fair and timely administration of justice. The consequences of any such refusal will need to be discussed with the client and instructions taken. In the event of receiving such an instruction, the solicitor may need to notify the Court Service, An Garda Síochána, Office of the Director of Public Prosecutions, the local state solicitor and/or judge in advance of their intention to apply to have the case adjourned to a future date.

In the event that a client instructs their solicitor that they no longer wish to retain the solicitor’s services in a particular case or where the solicitor-client relationship has broken down, in addition to the specific statutory requirement that applies to custody cases, the solicitor may need to notify the aforementioned parties in advance of their intention to apply to come off record.

References

[1] S.13(5) Legal Services Regulation Act 2015

[2] S. 215, Legal Services Regulation Act 2015