Declining to appear in custody cases

Our Director of Professional Practice, Fiona Robb, was asked to comment on circumstances where a defence agent declines to appear in custody cases.

The majority of custody appearance relate to new matters.

Solicitors can decide whether or not to accept instructions - from a new or existing client - providing they do not discriminate, under Rule 1.5.2.

1.5.2 You may decline to accept new instructions, whether from a new or established client, without giving a reason for doing so, provided the refusal to act is not motivated by discrimination in breach of rule 1.15.

The position is different when a client appears from custody on outstanding warrants. This was previously discussed by the Professional Practice Committee where it was agreed that it would be preferable for the nominated solicitor (or someone instructed by the nominated solicitor ) to appear as others would have no knowledge of the background.

A solicitor could potentially be criticised if they jumped between not acting, and acting, in a case where legal aid has been granted. If a solicitor has applied for legal aid for a client they are offering to act on their behalf until the case concludes or the solicitor, for professional reasons, withdraws. It is difficult to see how a defence agent could decline to appear at some hearings but continue to act overall.