Recent guidance from the Legal Aid Board (LAB) changing the standard limitation on legal aid certificates means that from the 1 September 1999 solicitors with higher court advocacy rights may provide advocacy and opinions in the same way as counsel provide these now.

The Law Society has welcomed the change having pressed for equality of treatment for solicitor advocates with the Bar for some time.

The LAB has taken measures to ensure that opinions are 'independent' requiring a solicitor from another firm to be instructed.

However, an external barrister will still be seen as independent even when he or she may be part of the legal team working on a particular case.

There is recognition that the charges of the instructed solicitor will be treated as disbursements.

However, practitioners will note that value for money remains a consideration when deciding whom to instruct to provide an opinion or to perform advocacy.

LAB GUIDANCE: SOLICITORS WITH HIGHER COURT ADVOCACY RIGHTS -- OPINIONS AND ADVOCACY IN CIVIL CASES 1 What is the main point? 1.1 The LAB recognises that there may be circumstances when a solicitor acting for an assisted person in a civil case will wish to obtain an opinion from a solicitor with higher court advocacy rights, instead of an opinion from counsel, or to instruct such a solicitor to perform advocacy in a higher court.

1.2 The LAB considers that it is right that solicitors with higher court advocacy rights (although they are not 'counsel') should be recognised as capable of giving opinions (like counsel) and that, although there are no regulations specifically covering payment for work done by solicitors with higher court advocacy rights in civil cases, they should be treated in a way similar to counsel.

Any counsel or solicitor instructed should be independent of the conducting solicitor's firm.

2 Are there any new limitations? 2.1 The LAB is changing the standard limitations on legal aid certificates so that, wherever the words 'counsel's opinion' appear, they are replaced by the words 'external counsel's opinion' and followed by the words 'or the opinion of an external solicitor with higher court advocacy rights'.

2.2 When a certificate is limited in this way, the conducting solicitor may choose whether to obtain an opinion from a barrister -- who is not employed by the conducting solicitor's firm -- or from a solicitor with higher court advocacy rights.

Such a solicitor must not be a partner in, employed by, or a consultant to the conducting solicitor's firm but rather from a different firm.

The job of the conducting solicitor is to get the opinion from a person whom they consider appropriate to give it.

2.3 The current limitations that allow a solicitor's report are not affected and will still be used where appropriate, that is, where a report from the conducting solicitor is required.

Note that in this context a solicitor's report will cover a report from an in-house barrister as what is required is a report from the conducting solicitor's firm.

3 Independent opinions 3.1 The LAB will always require a solicitor from another firm to be instructed.

The use of such a sol icitor who must not be a partner in, or employed by, or a consultant to the conducting solicitor's firm will ensure that the opinion obtained is independent and objective -- in the same way that an external counsel's opinion would be.

4 What standards have to be met? 4.1 Opinions from solicitors with higher court advocacy rights must comply with the Bar Council's guidelines (see pages 737 to 739 Legal Aid Handbook 1998/99).

They must also be dated and state the solicitor's name and roll number and include a statement confirming that the solicitor has higher court advocacy rights.

4.2 Instructions to solicitors with higher court advocacy rights must comply with Regulation 59(2) of the Civil Legal Aid (General) Regulations 1989 'Instructing Counsel' in respect of the information to be provided.

5 Are charges profit costs or disbursements? 5.1 When one solicitor has instructed another, for example, to attend court, the charges of the instructed solicitor have always been included in the instructing solicitor's bill as profit costs.

This is still the case, but subject to the following exception.

5.2 When a solicitor with higher court advocacy rights (from a different firm) provides an opinion (like counsel) that solicitor's charges may be (but do not have to be) included as a disbursement in the instructing solicitor's bill.

This recognises that the solicitor with higher court advocacy rights is providing the same service as a barrister.

5.3 If a solicitor with higher court advocacy rights acts as an advocate on behalf of his or her own firm or is instructed as an advocate on behalf of another firm when higher court advocacy rights are not required, his or her charges must be included in the instructing solicitor's bill as profit costs in the normal way.

Where, however, he or she acts as an advocate for another firm and higher court advocacy rights are required his or her charges may be included as a disbursement in the instructing solicitor's bill.

5.4 There is no obligation to claim the costs of a solicitor with higher court advocacy rights as a disbursement.

This is an option and they may still be claimed as profit costs.

6 What payment rates apply? 6.1 The Legal Aid in Civil Proceedings (Remuneration) Regulations 1994 as amended and the Legal Aid in Family Proceedings (Remuneration) Regulations 1991 as amended which apply in the county courts and the High Court do not specifically cover payment for opinions from solicitors with higher court advocacy rights.

Payment should, therefore, be claimed at the 'preparation' rate.

If the payment is properly claimed as a disbursement (see paragraph 5 above) the appropriate hourly rate (for example, franchised/non-franchised and London/out-of London) depends on the rate which the solicitor providing the opinion is entitled to charge.

It does not depend on the rate that the conducting solicitor is entitled to charge.

6.2 When advocacy is performed by a solicitor with higher court advocacy rights, the appropriate rate is that for advocacy by a solicitor (not counsel).

The fact that the solicitor has higher court advocacy rights does not affect the amount chargeable.

Where advocacy performed by a solicitor with higher court advocacy rights is properly claimed as a disbursement (see paragraph 5 above) the appropriate hourly rate depends on the rate which the solicitor performing the advocacy is entitled to charge.

It does not depend on the rate that the conducting solicitor is entitled to charge.

6.3 Any orders or regulations governing or prescribing payment (and any enhanceme nt or 'mark-up' which the instructed solicitor wishes to claim) from the legal aid fund, continue to apply for example, the Legal Aid in Civil Proceedings (Remuneration) Regulations 1994 as amended or the Legal Aid in Family Proceedings (Remuneration) Regulations 1991 as amended.

However, the prescribed rates do not restrict the amounts recoverable from any other party to the proceedings.

6.4 On House of Lords costs assessments, payment for preparing petitions for leave to appeal to the House of Lords, and for any advocacy at such leave hearings, will (as is always the case when such work is performed by counsel) be subject to the maximum rate that would be payable to junior counsel for such work 7 Do invoices have to be prepared? 7.1 When work done by a solicitor with higher court advocacy rights is properly claimed as a disbursement (see paragraph 5 above), that solicitor must send the conducting solicitor an invoice for the work.

7.2 The invoice must detail the work done, the time spent, the payment rate applied -- without any element of enhancement or other 'mark up' -- and VAT.

If any enhancement or 'mark up' is claimed, this must be shown separately with reasons why it is claimed.

7.3 Where the work done was advocacy before a court where higher court advocacy rights were required, this must be stated on the invoice.

8 What payments on account may be claimed? 8.1 Disbursements incurred in instructing a solicitor with higher court advocacy rights are subject to the usual provisions for payment on account of disbursements.

Applications for payments on account must be made by the conducting solicitor (not the instructed solicitor) with the receipted invoice.

8.2 To treat solicitors with higher court advocacy rights like barristers, the LAB will not make payments on account of such disbursements to be incurred -- only on account of disbursements that have already been incurred and will make maximum payments of 75% of the amount claimed.

8.3 The amount claimed on account should be at the appropriate rate (see paragraph 6 above) but without any element of enhancement or 'mark-up'.

Enhancement or 'mark-up' will not be paid on account but may be payable after the final bill has been assessed.

9 Whom does the LAB pay? 9.1 All payments by the LAB are made to the conducting solicitor's firm.

There is no provision in the regulations for paying solicitors with higher court advocacy rights direct.

9.2 When a conducting solicitor has included, as a disbursement in his or her bill, the charges of a solicitor with higher court advocacy rights, the minimum sum which the conducting solicitor must pay that solicitor is the full amount of the payment he or she receives for that work.

10 Can prior authorities or ABWOR prior permissions be granted? 10.1 As a solicitor with higher court advocacy rights is not 'counsel', neither authority under Regulation 59 Civil Legal Aid (General) Regulations 1989 nor prior permission under Regulation 23 Legal Advice and Assistance Regulations 1989 is required.

However, if an opinion from a solicitor with higher court advocacy rights has been obtained in proceedings covered by ABWOR or in authorised summary proceedings, area offices will, on assessment, look carefully at the reasonableness of obtaining the opinion and of the costs incurred.

10.2 Instructing a solicitor with higher court advocacy rights is not a step which falls within either Regulation 61 Civil Legal Aid (General) Regulations 1989 or Regulation 22 Legal Advice and Assistance Regulations 1989 so neither prior authorities nor prior permissions will be granted.

11 How are forms and bills completed? 11.1 Where work done by a solicitor with higher court advocacy rights is claimable as a disbursement by the conducting solicitor, it should be shown as such in his or her bill and claim for payment and any claim for payment on account.

11.2 In each case, a copy of the receipted invoice should be attached and the form or bill should set out the work that was done and the fact that it was done by a solicitor with higher court advocacy rights.

This is necessary to enable the work to be properly assessed.

12 Should value for money be a consideration? 12.1 Value for money should be a consideration for a conducting solicitor in deciding whom to instruct to provide an opinion or perform advocacy services.

In cases where payment is covered by regulations, for example, the Legal Aid in Family Proceedings (Remuneration) Regulations 1991 as amended, the prescribed rates will be a starting point from which to assess value for money, but may not be the sole consideration.