Duty solicitor

In the several Commonwealth countries, including the United Kingdom, Australia, New Zealand and Canada, a duty solicitor (or, in Canada, a duty counsel) is a solicitor whose services are available to a person either suspected of, or charged with, a criminal offence free of charge (pro bono) if that person does not have access to a solicitor of their own. These solicitors are generally in private practice, in contrast to the public defender system in the United States where an attorney employed directly by the state will be assigned to handle the case from pre-trial to potentially appeal. However, recent innovations in England and Wales and in Scotland have seen the development a similar system through the Public Defender Service for some parts of England and Wales and the Public Defence Solicitors' Office for Scotland.

United Kingdom

England and Wales

In England and Wales, there are two duty solicitor schemes, which operate in parallel. The police station duty solicitor scheme enables a person who is arrested on suspicion of a criminal offence to consult with a solicitor, either in person or on the telephone (and frequently both) whilst in police custody. This right is most often taken up when the suspect is to be interviewed concerning their suspected involvement in the commission of a crime.

The court duty solicitor scheme allows a person that has already been charged with an offence to consult with and be represented by a solicitor at the Magistrates' Court on their first appearance if they do not have, or simply have not contacted, their own solicitor. The right to see the duty solicitor applies equally to those defendants who are in custody or on bail, but the right is not unlimited – if the defendant is on bail and is charged with an offence that does not carry a sentence of imprisonment the duty solicitor is not permitted to act. A client is only permitted to take advantage of duty solicitor assistance on one occasion in respect to each matter charged. This contrasts with the right to advice from the duty solicitor whilst at the police station, which applies irrespective of what the alleged offence may be, and will last for the duration of any investigation. Some matters have been largely taken outside of the duty solicitor scheme at the police station due to the advent of Criminal Defence Service Direct, a telephone advice service that deals with many minor offences where an interview will not take place.

The duty solicitor schemes in England and Wales are managed by the Legal Services Commission. Each magistrates' court that operates such a scheme will have one or more solicitors allocated to any given court session. The police station schemes have one or more solicitors on duty for each police station, or police area (occasionally covering a number of police stations), depending on how busy the scheme. The busiest schemes in the country, can have a number of solicitors on duty at any one time. The Central Manchester scheme for example has 4 solicitors on duty at any one time.

There is widespread popular suspcicion that duty solicitors are "in league" with the police, although on a formal level they are completely independent of them. nor are they in any way inferior to non-duty solicitors. In fact, they are precisely the same people – a solicitor that a defendant may see for free on one day (because he or she happens to be on duty) might charge the same client several hundred pounds for the same advice on another day, although there is widespread popular suspicion that a private client may get better service than one who is publicly funded.

To act as a duty solicitor a solicitor must be a member of the Law Society's Criminal Litigation Accreditation Scheme[1]. To become a member of the scheme a solicitor must demonstrate a particular level of competence set by the Law Society. To demonstrate competence, a solicitor must pass a number of assessments.

Scotland

The duty solicitor scheme in Scotland is run by the Scottish Legal Aid Board. Although this being largely surplanted by the Public Defence Solicitors' Office.

Other countries

Duty solicitor schemes, based on the British system, are also run in Australia, New Zealand and Canada. In Canada, duty solicitors are called duty counsel and perform functions that would, in the British system, be performed by barristers and by solicitors.

The United States and Brazil employ a public defender system with nearly identical duties, representing an indigent client from custodial questioning, to charge, trial, sentence, and appeal.

External links

• BBC - The Law Essential Guides: The Criminal Defence Service
• Scottish Legal Aid Board
• Public Defence Solicitors' Office