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Local Court Duty Solicitor Scheme Guidelines

This information fact sheet outlines the Duty Solicitor Scheme which coordinates the involvement of private lawyers in Local Court criminal duty matters on behalf of Legal Aid NSW.

Legal Aid NSW and the Law Society of NSW have established the following guidelines relating to the provision of the Local Court Criminal Duty Solicitor Scheme.

logo of Legal Aid NSW alongside Lawsociety NSW

Criteria for inclusion and participation in the Duty Solicitor Scheme

  1. Solicitors participating in the Scheme must be appointed to the Summary Criminal Law Panel
  1. Principal place of practice
    In regional areas the principal place of practice of the solicitor (as registered with and stated on the Law Society website) must be located in the town or within 35 kilometres of the town where the local court is located, unless otherwise approved by Legal Aid NSW and the Regional President of the Law Society of NSW.

    In outer Metropolitan Sydney, the principal place of practice of the solicitor must be located in the suburb with the local court or in a suburb which is close to the court location.
  1. Duration of roster
    The duty solicitor roster will be for one calendar year, except where prior arrangements are made with Legal Aid NSW and the Law Society of NSW. Duty solicitors must operate on a formal roster basis. Rosters must differentiate between list and non-list days.
  1. New solicitors in town
    Unless agreed by the majority of solicitors on the roster, a new solicitor in town will not be eligible for inclusion in the current duty roster. However, they will be eligible for appointment on the next duty roster subject to these guidelines.
  1. Travel
    Travel will not be paid to solicitors rostered to attend court as the duty solicitor except: At courts in regions covered by the Far West Law Society, the North and North-West Law Society and the Orana Law Society. Existing travel entitlements apply.

    Where Legal Aid NSW has arranged for the attendance of a duty solicitor at a local court in a town where there are no legal firms or local firms do not participate in the Scheme, a travel allowance is paid if the total return distance travelled from the solicitor's office to court exceeds 70 kilometres and the solicitor is travelling to a court located outside the Sydney metropolitan area. Prior approval is required.

    If the duty solicitor is already attending court on behalf of a private client travel will not be approved.

    The Sydney metropolitan area includes all courts within the area bound by:

    • Hornsby;
    • Penrith;
    • Campbelltown; and
    • Sutherland.

Role of the Regional Law Society

  1. The Roster Coordinator
    The appointment of the Duty Solicitor Roster Coordinator (Roster Coordinator) and the term of the appointment shall be decided by the relevant Regional President. The Regional President may also be the Roster Coordinator.
  1. Preparing and coordinating the duty roster
    The Roster Coordinator will call for expressions of interest for appointment to the duty roster from solicitors whose principal place of practice is within the location boundary. This should be done at least two months before the end of each duty roster.

    Once expressions of interest have been received the Roster Coordinator will appoint solicitors to the duty roster in accordance with the 'Criteria for inclusion and participation in the Duty Solicitor Scheme' section of the guidelines ensuring the fair and reasonable distribution of work amongst solicitors appointed to the duty roster.
  1. In order to facilitate prompt payment of duty claims Roster Coordinators should have the new rosters prepared at least two weeks before the new duty roster commences. Please ensure a copy is provided to the Legal Aid NSW Duty Coordinator via email at dutyscheme@legalaid.nsw.gov.au.
  1. The Roster Coordinator must also provide a copy of the duty roster to:
    • Registrar of the Local Court to which the roster applies;
    • The Police station;
    • Aboriginal Legal Service NSW/ACT Ltd (if a service is provided in the town); and
    • Regional Law Society President.

Role of the Duty Solicitor

  1. Duty solicitors must attend court as rostered. On rostered list days the duty solicitor should arrive at 8.30am prior to attending court.

    A solicitor will attend on a non-list day only where there are fresh custodies unless otherwise approved by Legal Aid NSW. The solicitor will contact either Corrective Services or the Police to ascertain whether there are fresh custodies that require their attention.
  1. Duty solicitors may not delegate work to other solicitors who are not panel members, even if supervised unless exceptional circumstances exist and prior approval is sought from Legal Aid NSW.
  1. Duty solicitors who are unable to attend court on their rostered day must arrange for another duty solicitor to attend in their place.

    The replacement duty solicitor must be on the duty roster. The replacement can be a solicitor from the rostered duty solicitor's firm only if the solicitor is a member of the Summary Criminal Law Panel. The rostered duty solicitor must advise the local court and the Roster Coordinator of the name of the replacement duty solicitor.

    The solicitor must also email the Legal Aid NSW Duty Scheme Coordinator to advise them of the change at dutyscheme@legalaid.nsw.gov.au. This should be done 48 hours prior to the change.

  1. The duty solicitor must represent all clients who qualify for legal aid in the following matters:
  • Pleas of Guilty to summary State or Commonwealth charge matters and indictable charge matters which may be dealt with summarily
  • Bail applications, bail variations and breaches of bail
  • Mentions and adjournments.
  1. Duty solicitors must not appear in:
    • Defended hearings;
    • Committal proceedings, except when appearing as agent on behalf of Legal Aid NSW in-house practitioners; or
    • Matters which require any disbursement such as an expert report.

      Once the duty solicitor has satisfied themselves that the matter is either a defended hearing, a committal or requires any disbursement, the duty solicitor must submit an application for legal aid via Grants Online.

      The duty solicitor who is acting on the day the matter is set down for a defended hearing is responsible for submitting an application for a grant on behalf of the client.

  1. Duty solicitors may from time to time be requested by a Legal Aid NSW in-house practitioner to mention committal matters. When required, a Legal Aid NSW in-house practitioner will contact the rostered duty solicitor to mention a committal matter as an agent of Legal Aid NSW. If the rostered practitioner is unavailable, the Legal Aid NSW in-house practitioner may contact another practitioner on the relevant duty roster to attend.

    When appearing on behalf of a Legal Aid NSW in-house practitioner, the duty solicitor must confirm their availability to assist in writing, retain any notes or relevant documents from the attendance, and provide a written update to the Legal Aid NSW in-house practitioner with carriage of the matter within two business days of the mention.

    Duty solicitors may claim for this time as part of the Duty Solicitor Scheme via Grants Online.
  1. There is no means test in Children's Court duty matters.
  1. The Legal Aid NSW means test applies to adult clients except for the first bail application.
  1. Legal Aid NSW will not authorise the duty solicitor to retain a plea of guilty on a day that he/she is not the rostered duty solicitor unless exceptional circumstances exist. Prior approval must be obtained from the Grants Division of Legal Aid NSW.
  1. The duty solicitor should have a sound understanding of Legal Aid NSW Summary Criminal Law Practice Standards, Policies, Means Test and Verification Guidelines. See the For Lawyers page.
  1. All solicitors appearing as duty solicitors must complete the duty application form and have the client sign that form. Each form must be retained by the solicitor for Legal Aid NSW audit purposes.
  1. Duty tax invoices must be submitted through Grants Online as soon as possible, preferably the week of the duty appearance.
  1. The duty solicitor may appear on behalf of an applicant who satisfies the means test on the first occasion without sighting verification documents. The duty solicitor must not appear on subsequent occasions unless verification documents are sighted.
  1. The duty solicitor has the same duties towards the defendant as would apply to a private client under the normal solicitor-client relationship.

Dispute Resolution

  1. In the event of a dispute the solicitor and the Regional President shall attempt to settle the dispute. If the Regional President requires guidance, he or she may request advice from Legal Aid NSW.
  1. If the dispute is not settled by the parties, either party shall submit the dispute to the President and/or CEO of the Law Society of NSW.
  1. The President and/or CEO of the Law Society of NSW will notify the CEO of Legal Aid NSW and together they will determine a resolution. For further information please see the For lawyers page.

Updated August 2018