Using a solicitor
This information applies to Scotland only
Solicitors are not the only people who can provide legal advice. Legal help may be available from:
- other professionals - for example, an accountant who can give advice on tax and company law
- advice centres, such as the Citizens Advice Bureaux, housing advice centres, money advice centres, law centres
- other organisations, such as trade unions and motoring organisations.
You may act for yourself in court proceedings; if you act for yourself, you may have a friend or lay representative to assist you in court.
From 28 November 2016 a trainee solicitor is allowed to act as a lay representative in a simple procedure case. The simple procedure replaces the small claims and summary cause procedures in the sheriff court for cases of value of £5,000 or less on 28 November 2016 (not cases about heritable property which will still be progressed under the summary cause procedure).
If you need a solicitor you should choose one who has experience in the appropriate area of law.
The Law Society of Scotland has a 'find a solicitor' search facility on their website at www.lawscot.org.uk. You can search for a solicitor by area of law, your postcode or by the name of the firm. Alternatively, a local advice agency such as a law centre or Citizens Advice Bureau (CAB) should be able to advise you which local solicitors have experience in the appropriate area of law.
- Please note: the Law Society of Scotland cannot provide legal advice.
If you are in custody at a police station, or have been charged, you can obtain free legal advice under the duty solicitors’ scheme. If you are at court, the arrangements for providing the solicitor will vary.
If you need more information about the duty solicitors’ scheme you should consult an experienced adviser for example, at a Citizens Advice Bureau - where to get advice. In some cases, a CAB can refer you to an organisation which can offer free legal help. Solicitors who are registered to carry out legal assistance work can be found on the registers on the Scottish Legal Aid Board's website at www.slab.org.uk.
When you have chosen your solicitor you will need to make an appointment. In most circumstances you would be given an appointment within 5 working days. If the matter is urgent the solicitor should try and arrange an earlier appointment.
You should take all relevant documents to the appointment and it may be helpful to prepare in advance a list of questions for the solicitor.
You should take a form of identification with you to the interview, such as a current passport or driving licence. You should check with the solicitor beforehand exactly which documents you need to take to the interview.
A solicitor must comply with certain rules and standards laid down by the Law Society. The solicitor is expected, for example, to give you certain information at the first interview. This information includes:
- how the solicitor intends to deal with the problem
- what the solicitor’s next step is
- information about costs
- the expected timescale of the case
- who in the firm should be contacted if there is a problem with the service offered.
You should make sure you understand what the solicitor has told you and should not be afraid to ask questions.
During the case the solicitor should keep you regularly informed of progress even if there are no significant developments.
You can find out more in a comprehensive leaflet called 'Standards for Scottish Solicitors' on the Law Society for Scotland's website at www.lawscot.co.uk.
It is against the law for your solicitor to discriminate against you because of your age, disability, gender reassignment, pregnancy and maternity, sex, sexual orientation, race, religion or belief. In addition, solicitors’ professional rules say that a solicitor should not discriminate against you because of your age. You can make a complaint about discrimination by:
- your own solicitor, or
- the solicitor who is acting for someone against you.
More about making a complaint.
At the beginning of the case the solicitor must give you information about the likely cost of the case and how the charge is calculated, for example, a fixed fee, an hourly rate or a percentage fee (for example when buying and selling houses).
In some cases, for example, personal injury cases, you may be able to enter into a speculative fee agreement (no win, no fee) with the solicitor. This means that the amount you will pay will depend on whether you win or lose your case. If you lose your case, you will have to pay the costs of the other side and your own solicitor's outlays. You will normally be asked to take out insurance to cover this situation. If you win your case, you will usually pay your solicitor's fee plus a 'success fee' from the damages and expenses you receive from the other side. You cannot enter into a speculative fee agreement if you are receiving legal aid.
If you are considering entering into a speculative fee agreement, you must be clear about what the terms of the agreement will entail, and you should consult an experienced adviser, for example at a Citizens Advice Bureau - where to get advice.
The costs of the case will not be charged according to the result, unless you and the solicitor have previously agreed otherwise.
The solicitor should discuss how the costs are to be met and whether you are eligible for legal aid. If the solicitor does not do legal aid work, s/he should still explain the advantages of legal aid to you if you are eligible, and give you the opportunity of going to a solicitor who does do legal aid work.
For details about help with legal costs see Help with legal costs.
If the solicitor is holding money on your behalf it must be kept in an interest bearing account, and you are entitled to interest on the amount held.
The solicitor’s bill will be made up of three elements: outlays, fees and VAT.
Outlays are the expenses the solicitor has had to pay out on your behalf - for example, the cost of a valuation survey by a surveyor. Fees cover the professional services carried out by the solicitor on your behalf. If the work was court work, the fees that the solicitor can charge are subject to court rules and scales. There are no scales that regulate non-court work, but the charges must be fair and reasonable. VAT will be charged on the fees and some outlays.
If you think the bill is too high, you can:
- ask the solicitor for a detailed account
- ask a court to look at the bill.
Getting a detailed bill from the solicitor
You can write to the solicitor asking for full details of how some or all of the charges on the bill were worked out. This letter should also include a request for a written reply. Items such as Land and Buildings Transaction Tax for buying a house are fixed amounts and cannot be questioned.
Asking a court to examine the bill
This procedure can be used for any work done by a solicitor, and is known as "taxation". A court can examine the whole bill, and can either approve it or reduce it. (It can also increase it, but this is not common).
The court makes a charge for carrying out a taxation. If it decides that the bill is too high the solicitor will have to pay the charge. However, if the court decides that the bill is reasonable, you will have to pay it, in addition to the bill itself.
For information on challenging a solicitor’s bill you should consult an experienced adviser for example, at a Citizens Advice Bureau - where to get advice.
You may be dissatisfied with your solicitor for a number of reasons - for example, you may have problems with legal aid, and/or you may be dissatisfied with the outcome of the case. Your solicitor has not made the decisions about these aspects of your legal action so you cannot formally complain to the solicitor about them.
However, if you are dissatisfied with the way the case was handled by the solicitor - for example, delays, or losing documents or money or how s/he behaved towards you, you can complain. The solicitor can also tell you where to complain to about legal aid or the outcome of your case.
|1||Complain to the firm of solicitors|
|2||Complain to the Scottish Legal Complaints Commission (SLCC)|
|3||Scottish Legal Complaints Commission decides if there is a complaint and who will investigate it|
|4||What to do if you are unhappy about the way the complaint has been handled|
Step 1: Complain to the firm of solicitors
In all cases the complaint has to be made first to the solicitor or their firm preferably in writing. Many complaints are resolved at this stage. If you try to skip this stage the Scottish Legal Complaints Commission will treat your complaint as ‘premature’ and may direct you back to the solicitor or firm. If you have not received a satisfactory response after four weeks, you can make a complaint to the Scottish Legal Complaints Commission.
Step 2: Complain to the Scottish Legal Complaints Commission
The Scottish Legal Complaints Commission (SLCC) is a gateway for all complaints about legal practitioners, including solicitors and advocates.
There is lots of detail about how to complain and what you can and can't complain about on the website of the Scottish Legal Complaints Commission at www.scottishlegalcomplaints.org.uk. You can make your complaint using the SLCC online complaint form or by downloading, completing and signing a complaint form and sending it to SLCC at the address below.
Once you are ready to make your complaint, you must send a completed complaint form by email or post to:
The Scottish Legal Complaints Commission
The Stamp Office
10 - 14 Waterloo Place
Tel: 0131 201 2130
Fax: 0131 201 2131
Step 3: Scottish Legal Complaints Commission (SLCC) decides if there is a complaint and who will investigate it
The SLCC will decide whether it can investigate the complaint. If they can't it will explain the reasons why.
If the SLCC can investigate the complaint, in the first instance, you may be offered free mediation to help to resolve your complaint. If either you or the legal practitioner, about whom the complaint is being made, refuse mediation or the mediation is unsuccessful the complaint will be referred to an investigator.
When the complaint is about the service that was provided by the solicitor the SLCC investigates the complaint.
When the complaint is about the conduct of the solicitor it is passed to the Law Society of Scotland to investigate.
When the complaint is a mixture of both types of complaint a decision is taken by the SLCC about how it should be handled and they will liaise with the Law Society of Scotland. The general approach is that unless a conduct issue is particularly serious or urgent the SLCC will investigate the complaint about service first then pass the conduct complaint to the Law Society of Scotland to investigate.
Step 4: What to do if you are unhappy about the way the complaint has been handled
If your complaint was dealt with by the SLCC and you are unhappy about the way it was handled you can lodge a complaint using the SLCC’s complaints procedure on their website at www.scottishlegalcomplaints.org.uk.
If your complaint was about conduct and investigated by another professional organisation but you are unhappy with the way it was handled you can complain to the SLCC. This is called a ‘handling complaint'. You can get more information about it at www.scottishlegalcomplaints.org.uk.
Service and Conduct complaints
Before 1 April 2017 the time limit for making complaints about service or conduct to the Scottish Legal Complaints Commission (SLCC) was 12 months for actions of a solicitor on work instructed before 1 April 2017. The 12 month limit started to run from the last date on which it could be demonstrated that your practitioner provided services on the matter complained about. When assessing the one year period the SLCC will disregard any period of time when it can see that you were unaware of any concerns. Complaints are rarely accepted outside the twelve month limit. There has to be very exceptional circumstances for the time limit to be lifted and you will have to provide evidence for the exceptional circumstances.
A new time limit of 3 years has been set from 1 April 2017 for you to make a complaint about actions of a solicitor. The 3 year time limit will apply only to a complaint arising from new work which was first instructed on or after 1 April 2017. Your complaint may relate to conduct, a specific act, or something a solicitor failed to do after that date.
You must contact the SLCC about this type of complaint within 6 months of the date on which the Law Society of Scotland wrote to you with their decision. If you contact the SLCC after this date, it cannot consider your complaint.
Complaint was made before 1 October 2008
When you made your complaint before 1 October 2008 you will have to find out how it is progressing from either the Law Society of Scotland or the Faculty of Advocates. Contact details for these two organisations are:
The Law Society of Scotland
144 Morrison Street
Faculty of Advocates
Tel: 0131 226 2881
Fax: 0131 225 3642
Professional negligence and damages
When you have suffered actual financial loss because of errors or omissions by your solicitor you should seek legal advice about the best way to proceed with your complaint.