The CLSA Committee has considered at length the extraordinary situation created by the Ministry of Justice in attempting to require solicitors to work for no payment at all in certain cases and has produced a draft protocol for solicitors to consider.

In cases where solicitors feel unable to act free of charge in proceedings prior to committal (where a case is due to be committed to the Crown court) it may be thought appropriate to utilise the services of the duty solicitor for a hearing up to but not including the committal hearing itself. The following is a suggested protocol that firms by local co-operation and agreement may wish to adopt in the interests of their clients.

Full Protocol

1. Once a client is charged for court with an either-way offence where committal to the Crown Court is likely, the solicitor of choice notifies the Duty Solicitor of the day that the defendant will be appearing and that they will need representation.
2. Each day all solicitors are free to attend court and guide any of ?own clients? on either-way charges to the Duty Solicitor
3. No legal aid will be applied for until after the committal has taken place.
4. The solicitor who expects to establish a retainer should write to the client or hand over at court an information sheet as soon as possible in the form of Annex B
5. The Duty Solicitor must be clear that:
6. • The defendant is only entitled to be represented by a Duty Solicitor once
   • The Duty Solicitor should report back to the solicitor of choice within 24 hours.
7. The Duty Solicitor should make it clear to the court that the defendant will not be represented at for the committal and therefore the case should be listed for contested read through committal under section 6(1) and papers to be served direct on the defendant. Annex B reminds the client to hand the papers to his solicitor as soon as possible after the committal or a legal aid application may not be submitted as there would be insufficient information available to enable the solicitor to conduct the case.
8. Nothing in this protocol prevents a solicitor from representing his client privately and claiming a payment under a defence Costs order where appropriate in the event of a discontinuance or dismissal.
9. Nothing in this protocol prevents a solicitor from representing his client for free unless he acts as court duty solicitor but please note the Law Societies latest guidance that: "in the Society's view a solicitor is unlikely to be compliant with obligations if...the solicitor accepts instructions to 'be a defendant's solicitor' but declines to apply for a representation order or to undertake any work for them in the magistrates' court". The Law Society also state that a solicitor "may properly decline to accept instructions to act in the magistrates' court for a defendant in an either way case where they consider it is likely that the defendant will be committed to the Crown Court, and that in consequence they will receive no remuneration for work done in the magistrates' court. "
10. All duty schemes should have a meeting open to all members to discuss the adoption of this protocol in whole or in part and set up a local Duty Solicitor committee to monitor the working of the protocol and any other relevant matters.