The Advice and Assistance (Scotland) Amendment Regulations 2007

Amendment of the Advice and Assistance (Scotland) Regulations 1996

5.  After regulation 8, insert–

“Civil Advice and Assistance

8A.— (1) Where a solicitor approves an application for advice and assistance in relation to a civil matter under Part II of the Act, the solicitor shall determine whether or not the advice and assistance relates to a distinct matter.

(2) Subject to paragraphs (3) and (4), an application for advice and assistance relates to a distinct matter if the subject matter of the application is determined by the Board, in accordance with guidance issued by it, to be treated as distinct.

(3) Any determination by the Board as to the matters which are or are not to be treated as distinct matters may only be made following consultation with the Law Society(1).

(4) Where a matter has been determined by the Board to be treated as a distinct matter, the Board may not determine that the matter is no longer to be so treated unless the Scottish Ministers consent(a).

(5) Where the subject matter to which the advice and assistance relates is a distinct matter the solicitor may approve one application for advice and assistance which shall include–

(a) all distinct matters reasonably ancillary thereto; and

(b) all matters reasonably ancillary thereto which are not distinct.

8B.— (1) Where the subject matter to which the advice and assistance relates is not distinct, the solicitor shall give advice and assistance to the client by way of a diagnostic interview.

(2) Where a client has more than one subject matter upon which he seeks advice and assistance, none of which is distinct, the solicitor may approve one application for advice and assistance for all such matters.

(3) Where a solicitor, having approved and proceeded to provide advice and assistance by way of a diagnostic interview, considers that a subject matter which is not distinct should be treated as if it were so, then he may make application to the Board for the subject matter to be so treated.

(4) On receipt of an application under paragraph (3), the Board shall–

(a) determine that the subject matter should be so treated; or

(b) reject the application,

as the Board thinks fit.

(5) Where a client has more than one subject matter upon which he seeks advice and assistance and the advice and assistance relates to both distinct matters and matters which are not distinct and which are not reasonably ancillary to the distinct matters then the solicitor shall keep a separate record of the advice and assistance given by way of a diagnostic interview.”.

(1)

These provisions must be included in the Regulations in accordance with section 36(2A) of the Legal Aid (Scotland) Act 1986 (c. 47) which was inserted by the Legal Profession and Legal Aid (Scotland) Act 2007 asp 5, section 76.