Assignment of legal aid cases to practitioners

This page helps lawyers understanding the process of assignment to a legal aid case, including how a legal aid applicant may be able to chose their preferred lawyer. 

It also includes information about refusals and appeals of legal aid, and general assignment criteria for lawyers with restricted practising certificates.

Legal Services Lawyer or Private Lawyer

In assigning matters to Commission staff or to private legal practitioners the primary consideration is Legal Services obligation under section 11(a) of the Legal Services Commission Act 1977  (SA) “to seek to insure that legal assistance is provided in the most efficient and economical manner”. Further, pursuant to section 11(d) of the Act, Legal Services is required to "have regard to the following factors:

• the need for legal assistance to be readily available and easily accessible to disadvantaged persons;
• the desirability of enabling all assisted persons to obtain the services of legal practitioners of their choice;
• the importance of maintaining the independence of the legal profession;
• the desirability of enabling legal practitioners employed by Legal Services to utilise and develop their expertise and maintain their professional standards by conducting litigation and doing other kinds of professional legal work.

Subject to other considerations (see Solicitor of Choice), Legal Services will generally give effect to client choice of practitioner.

Solicitor of Choice

An applicant for legal assistance may request a solicitor of his or her choice. Generally, Legal Services will give effect to the client’s choice. Legal services will not give effect to a client’s choice of practitioner if–

1. the chosen practitioner is not a member of the General Panel and, if applicable, the appropriate specialist panel; or
2. the practitioner holds a restricted practising certificate and the matter is one that will only be assigned to a practitioner holding
3. an unrestricted practising certificate (see Restricted Practising Certificates); or
4. in the opinion of the Director, such an assignment would not be in the interests of the client; or
5. the assignment would be inefficient or uneconomic.

Funding for the transfer of a matter to a new legal practitioner, if applied for between conviction and sentencing for the purpose of sentencing submissions, will be refused, unless special circumstances, as determined by the Director, apply to the matter.

If a client does not request a particular solicitor, and aid is granted, the matter will, if possible, be assigned in-house.  If the matter cannot be assigned in-house, the matter will be granted to a private practitioner on the appropriate Legal Aid Panel who has indicated a willingness to accept assignments in that particular area of law.

The practitioner will be selected, in the vast majority of cases, by geographical considerations, (particularly rural and outer suburban areas) where practitioners have indicated that they service a particular court, or their office is closest to where the applicant resides. In other instances, practitioners will be selected as having a particular expertise in the relevant area of law, or availability at short notice.

Appeals against refusal to grant aid

If a practitioner does not receive approval to act then that practitioner can request a reconsideration and will be accorded a right of appeal to Legal Services Appeal Committee.  The Appeal Committee may uphold or change the decision of the Grants Officer. See Appeals.

Restricted Practising Certificates

The following criteria apply to practitioners holding restricted practising certificates:

• Magistrates Court matters involving only summary charges may be assigned to a practitioner in the first year of a restricted practicing certificate. That practitioner may act as solicitor and counsel.
• Magistrates Court matters involving only minor indictable charges, or a combination of minor indictable and summary charges, may be assigned to a practitioner in the second year of a restricted practicing certificate provided Legal Services is informed of the nature of the matter, approves it to be undertaken by the named practitioner and is satisfied that the junior practitioner is properly supervised. That practitioner may act as solicitor and counsel.
• District and Supreme Court matters will only be assigned to a legal practitioner holding an unrestricted practicing certificate. Legal Services acknowledges that on occasions junior practitioners working at a firm may be undertaking specific tasks on a legally aided file as a solicitor, but Legal Services expects that the junior practitioner will be properly supervised in the conduct of these tasks. Counsel attendances in Court must be by a practitioner holding an unrestricted practicing certificate.
• Matters arising under the Guardianship and Administration Act 1993 and the Mental Health Act 2009 may be assigned to a practitioner holding a restricted practising certificate to act as solicitor and counsel where:
  • the practitioner is a member of the Guardianship and Mental Health Representation Panel, and
  • the matter either:
    • is a review of an order under section 81 of the Mental Health Act 2009, or
    • is to be heard in the South Australian Civil and Administrative Tribunal (SACAT) in the exercise of its original jurisdiction, and
  • Legal Services is satisfied that the practitioner will be properly supervised.
• Practitioners should inform the Commission as soon as an unrestricted practising certificate is obtained.