We are often contacted by clients who have lost faith with their current representation or want a second opinion. Here we explain in the legal aid transfer application process and on what circumstances can Legal Aid be changed to allow you to be represented by a new solicitor.
When charged with a criminal offence the last thing that should be on your mind is any anxiety surrounding legal representation. There are numerous reasons for wanting to change your solicitor but when is the transfer of representation allowed?
Following a police station attendance, you can make the decision to change representation without the need of approval from the Court. This can be done by simply calling a firm and instructing them (if you did not have representation in interview) or by asking your current firm to send your file to a new one.
A case that is before the Court can be funded in two ways, privately or by legal aid. If you are funding your case using your own money, then a transfer is as simple as informing your current solicitor that you no longer wish to instruct them. Unfortunately, if your case is being funded by the Legal Aid Agency then the process is not as straightforward. An Application to Transfer will need to be completed by you, your new firm and your old firm before it can be sent to the Court to consider. The decision to allow the transfer of solicitor is made by the Court. The court will take costs into account as paying two firms without a valid reason is not proper use of public funds.
If your current firm does not oppose the application then the process is easier. But, if they do not accept the criticism of their conduct or do not agree with the issues raised, then the case is listed before a Judge for consideration. A judge may wish to hear evidence about the complaint.
What are Valid Reasons to Transfer Legal Aid?
There are a number of reasons that the court will allow legal aid to be transferred to a new solicitor, including;
- The representative considers himself to be under a duty to withdraw from the case in accordance with his professional rules of conduct and, in such a case, the representative shall provide details of the nature of such duty.
This reason is usually utilised by the solicitor rather than a defendant. An example of this would be if you told your solicitor “I’ve done it but I’m going to tell the Court that I didn’t.” Your solicitor has a duty not to mislead the Court and would therefore no longer be able to represent you.
- There is a breakdown in the relationship between the assisted person and the representative such that effective representation can no longer be provided, and, in such a case, the representative shall provide details of the nature of such breakdown.
This is the most common reason for an application to transfer. Whilst “breakdown” is not defined, it covers a number of situations such as little to no communication and lack of trust or confidence in the firm.
- Through circumstances beyond his control, the representative is no longer able to represent the assisted person.
Again, this is a reason that would be used by your solicitor. Examples would include either illness, lack of capacity or the closing of the department/firm.
- Some other substantial compelling reason exists.
This covers all other reasons that do not fall under the categories mentioned above. These reasons will come under high scrutiny by the Judge.
What Happens if the Transfer is Granted?
If your application is granted, then the new firm will be entitled to access to all the Prosecution papers and your old firm may provide further information to assist. There might be a delay in your new solicitors contacting you to make an appointment as it can take some time before these documents are made accessible to them.
What Happens if the Transfer is Refused?
Unfortunately, if the transfer is refused you will have to continue being represented by your current firm. You should not be treated any different and the firm may try and fix the issue by allocating your case to a different solicitor within the company. If the issues persist, you can try and make another application to transfer but unless there is a significant change in circumstances it will most likely be refused again. If you are able to fund your case privately, you can revoke your legal aid order and instruct a firm of your choice. It is important to bear in mind that if your case is successful, you will not be entitled to court costs as you were initially eligible for legal aid.
Should you wish to discuss transferring your case to Burton Copeland, please contact us.