Solicitors (Scotland) Act 1980

1980 c.46

C56 C1An Act to consolidate certain enactments relating to solicitors and notaries public in Scotland.

[1st August 1980]

Annotations:

Modifications etc. (not altering text)

C56

Act applied (with modifications) (22.5.2000) by S.S.I. 2000/121, regs. 1, 37(2), Sch. 2 para. 1; which affecting S.S.I. is revoked by S.S.I. 2019/127, regs. 1(1), 3(b) (subject to savings and transitional provisions in regs. 6-12, Sch. para. 2)

Act excluded (17.5.2004) by S.I. 1978/1910, art. 18(2) (as amended by The European Communities (Services of Lawyers) Amendment (Scotland) Order 2004 (S.S.I. 2004/186), arts. 1, 6); which affecting 1978 Order is revoked by S.S.I. 2019/127, regs. 1(1), 3(a) (with regs. 4, 5)

Part I Organisation

The Law Society of Scotland

1 Establishment and objects of Law Society of Scotland.

1

The Law Society of Scotland (referred to in this Act as “the Society”) shall continue to exist and shall exercise the functions conferred upon it by this Act.

2

The objects of the Society shall include the promotion of—

a

the interests of the solicitors’ profession in Scotland; and

b

the interests of the public in relation to that profession.

3

The Society may do anything that is incidental or conducive to the exercise of these functions or the attainment of those objects.

4

Schedule 1 shall have effect in relation to the Society.

2 Membership of Society.

1

Every solicitor having in force a practising certificate shall be a member of the Society.

2

Notwithstanding any other provisions of this Act, the Council may admit as a member of the Society any solicitor not having in force a practising certificate on such terms and conditions (including the payment by him of a reduced annual subscription) as they may determine.

3

Subject to subsection (2), a solicitor shall—

a

be treated as if he were not a member of the Society while suspended from practice as a solicitor under any enactment;

b

cease to be a member of the Society when his practising certificate ceases to have effect.

The Council of the Law Society

3 Establishment and functions of Council of Law Society.

1

The business of the Society shall continue to be conducted by the Council of the Society (referred to in this Act as “the Council”) the members of which shall be elected in accordance with the provisions of the scheme made under paragraph 2 of Schedule 1.

2

The Council shall have the functions conferred upon them by this Act.

5 Training regulations.

i

that he has complied with the provisions of any regulations made under section 5 that apply to him, and

ii

that he is a fit and proper person to be a solicitor,

and has obtained from the Council a certificate to that effect; and

c

he has paid such sum in respect of his admission as has been fixed by the Council with the approval of the Lord President.

F32

Where—

a

a person has complied with the requirements of subsection (1); but

b

the Council have not lodged a petition for his admission as a solicitor within one month of his having so complied,

he may apply by petition to the court for admission as a solicitor; and if he produces the certificate mentioned in paragraph (b) of subsection (1) the court shall make an order admitting him as a solicitor.

3

If any person has not obtained from the Council a certificate to the effect mentioned in paragraph (b) of subsection (1) but has otherwise satisfied the requirements of that subsection the Court, on such an application being made by him and on being satisfied after such inquiry as it thinks fit, that—

a

he is a fit and proper person to be admitted as a solicitor, and

b

he is competent to be a solicitor,

may make an order admitting him as a solicitor.

F43A

The Council may petition the court for the admission as a solicitor of an applicant who has complied with the requirements of subsection (1) above; and, where it does so it shall lodge the petition not later than one month after the applicant has first so complied.

3B

The Court shall, on a petition being made to it under subsection (3A) above, make an order admitting the applicant as a solicitor.

4

Any order admitting a person as a solicitor under this section shall include a direction to the Council to enter the name of that person in the roll.

5

Nothing in this section affects the operation of the M1Colonial Solicitors Act 1900 or any Order in Council made under that Act (admission as solicitors in Scotland of solicitors of certain overseas territories)

6

Every person who has been enrolled as a law agent shall be deemed to be admitted as a solicitor.

regulate the making, hearing and determining of applications under subsection (1);

b

provide for payment by the applicant to the Council of such fee in respect of restoration to the roll as the rules may specify.

11 Directions by Lord President.

1

The Lord President may give directions to the Council in relation to the carrying out of their duties in connection with the keeping of the roll and they shall give effect to any such direction.

2

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F13

12. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F14

F18 Register of European lawyersF18

Annotations:

Amendments (Textual)

F18

Ss. 12A-12D inserted (22.5.2000) by S.S.I. 2000/121, regs. 1(1), 37(1), Sch. 1 para. 1(2)

1

Subject to this section and sections 14 to 24, the Council may make rules with respect to—

a

applications for practising certificates;

b

the issue of practising certificates;

c

the keeping of a register of applications for and the issue of practising certificates.

2

Any person may inspect the register during office hours without payment.

3

The making of a false statement by a solicitor in an application for a practising certificate may be treated as professional misconduct by him for the purposes of Part IV, unless he proves the statement was made without intention to deceive.

14 Issue of practising certificate.

1

The Council shall issue to an enrolled solicitor on application being duly made by him, a practising certificate in accordance with rules made by them under section 13.

2

The Council shall not issue a practsing certificate to a solicitor while he is suspended from practice.

15 Discretion of Council in special cases.

1

In any case where this section has effect, the applicant shall, unless the Council otherwise order, give to the Council, not less than 6 weeks before he applies for a practising certificate, notice of his intention to do so; and the Council may in their discretion—

a

grant or refuse the application, or

b

decide to issue a certificate to the applicant subject to such conditions as the Council may think fit.

2

Subject to subsections (3) and (4), this section shall have effect in any case where a solicitor applies for a practising certificate

a

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F19

b

not having held a practising certificate in force within the period of 12 months following the date of his admission; or

c

when a period of 12 months or more has elapsed since he held a practising certificate in force; or

d

without having paid in full any fine imposed on him under Part IV; or

e

without having paid in full any expenses for which he has been found liable under section 38 or Part IV; or

f

when, having been suspended from practice, the period of suspension has expired; or

g

when, having had his name struck off the roll, his name has been restored to the roll; or

h

after his estate has been sequestrated or he has granted a trust deed for behoof of creditors, whether he has obtained his discharge or not; or

i

when, after a complaint has been made—

i

relating to his conduct of the business of a client his attention has been drawn by the Council to the matter, and he has not replied or has not furnished a reply which would enable the Council to dispose of the matter; or

ii

of delay in the disposal of the business of a client he has not completed that business within such period as the Council may fix as being a reasonable period within which to do so,

and in either case has been notified in writing by the Council accordingly F20; or

j

while any thing required to be done by him by a direction of the Council under section 42A or of the Tribunal under section 53A (including any such direction as confirmed or varied on appeal) remains undone.

3

Where a practising certificate free of conditions is issued by the Council under subsection (1) to a solicitor in relation to whom this section has effect by reason of any such circumstances as are mentioned in paragraphs (b), (c), (f), (g) or (h) of subsection (2), this section shall not thereafter have effect in relation to that solicitor by reason of those circumstances.

4

Where the Council decide to issue a practising certificate subject to conditions, they may, if they think fit, postpone the issue of the certificate pending the hearing and determination of an appeal under section 16.

16 Appeals from decisions of Council.

1

Where an application for a practising certificate is duly made to the Council otherwise than in a case where

F21a

section 15 has effect and the Council refuse or neglect to issue a practising certificate, the applicant F22;

b

the Council refuse to recognise a body corporate as being suitable in terms of section 34(1A)(b), the body corporate

may apply to the Court, who may make such order in the matter as it thinks fit.

2

Where the Council in exercise of the power conferred on them by section 15, refuse to issue a practising certificate, or issue a practising certificate subject to conditions, the applicant may appeal to the Court against that decision within 14 days of being notified of it.

3

On an appeal to the Court under subsection (2) the Court may—

a

affirm the decision of the Council, or

b

direct the Council to issue a practising certificate to the applicant subject to such conditions if any as the Court may think fit; or

c

make such other order as it thinks fit.

17 Date and expiry of practising certificates.

1

Every practising certificate issued in November of any year shall bear the date of 1st November in that year, and every other practising certificate shall bear the date of the day on which it was issued.

2

Every practising certificate shall have effect from the date it bears under subsection (1).

3

Subject to subsection (4), every practising certificate shall expire on 31st October next after it is issued.

4

On the name of any solicitor being struck off the roll or on a solicitor being suspended from practice as a solicitor, any practising certificate for the time being in force of that solicitor shall cease to have effect, but in the case of suspension, if he ceases to be so suspended during the period for which the practising certificate would otherwise have continued in force, the certificate shall thereupon again have effect.

18 Suspension of practising certificates.

1

If—

a

in pursuance of the F205 M13Mental Health (Scotland) Act 1984, a solicitor is, by reason of mental disorder, admitted to a hospital and becomes liable to be detained there or becomes subject to guardianship;

b

acurator bonisis appointed on the estate of a solicitor;

c

the estate of the solicitor is sequestrated;

d

a solicitor grants a trust deed for behoof of creditors;

e

a judicial factor is appointed on the estate of the solicitor under section 41;

any practising certificate for the time being in force of that solicitor shall cease to have effect, and he shall be suspended from practice as a solicitor.

F2061A

If—

a

an administration or winding up order, or an appointment of a provisional liquidator, liquidator, receiver or judicial factor has been made in relation to the incorporated practice; or

b

the Principal Clerk of Session;

ii

the Principal Clerk of the Judicial Office of the House of Lords; and

iii

the Registrar to the Judicial Committee of the Privy Council;

and

b

the High Court of Justiciary, to the Principal Clerk of Justiciary,

as soon as practicable after 1st December in each year; and where, by virtue of an order under section 53(2)(ba), 53A(2)(ba) or 55(1)(ba), a solicitor’s right of audience in any of those courts is suspended or revoked, the Council shall forthwith inform the persons mentioned in this subsection of that fact.

3

The Council shall notfiy those persons to whom they have sent lists under this section of any changes in those lists.

21 Consultants to hold practising certificates.

1

A consultant shall be treated for the purposes of this Act as a practising solicitor and the provisions relating to practising certificates and, subject to subsection (2), the Guarantee Fund shall apply to him.

2

The Council may if they think fit exempt a consultant from any of the provisions of section 43 or Schedule 3 (the Guarantee Fund).

3

In this section “consultant” means any solicitor who

F28a

not being in partnership with a solicitor or other solicitors causes or permits his name to be associated with the name of that solicitor or those solicitors or their firm’s name,

F29b

not being a director of an incorporated practice, causes or permits his name to be associated with that incorporated practice,

whether he is described as a consultant or adviser or in any other way.

22 Evidence as to holding of practising certificates.

1

Any list purporting to be issued by the Council and to contain the names of solicitors in Scotland who have before 1st December in any year obtained practising certificates for the period of 12 months from 1st November in that year shall, until the contrary is proved, be evidence that the persons named in that list are solicitors holding such certificates.

2

The absence from any such list of the name of any person shall, until the contrary is proved, be evidence that the person is not qualified to practise as a solicitor under a certificate for the current year, but in the case of any such person an extract from the roll certified as correct by the Council shall be evidence of the facts appearing in the extract.

23 Offence to practise without practising certificate.

1

Any person who practises as a solicitor or in any way holds himself out as entitled by law to practise as a solicitor without having in force a practising certificate shall be guilty of an offence under this Act unless he proves that he acted without receiving or without expectation of any fee, gain or reward, directly or indirectly.

2

Without prejudice to any proceedings under subsection (1), failure on the part of a solicitor in practice to have in force a practising certificate may be treated as professional misconduct for the purposes of Part IV.

23AF30 Professional misconduct for registered European lawyer to practise without a registration certificate

Failure on the part of a registered European lawyer in practice to have in force a current registration certificate may be treated as professional misconduct for the purposes of Part IV.

F3123B

Failure on the part of a registered foreign lawyer in practice to have in force a current registration certificate may be treated as professional misconduct for the purposes of Part IV.

24 Saving of public officials.

Nothing in this Act shall require a practising certificate to be taken out by a person who is by law authorised to act as a solicitor to a public department without admission, or by any assistant or officer appointed to act under the direction of any such solicitor.

F39Registration certificates for registered European Lawyers

Annotations:

Amendments (Textual)

F39

Cross-heading and ss. 24A - 24G and inserted (22.5.2000) by S.S.I. 2000/121, regs. 1(1), 37(1), Sch. 1 para. 1(3)

F3224A Applications for registration certificates

1

Subject to sections 24B to 24G below, the Council may make rules with respect to–

a

applications for;

b

the issue of;

c

the keeping of a register for and the issue of,

registration certificates for registered European lawyers as it would make rules under section 13 with respect to practising certificates for enrolled solicitors.

2

Any person may inspect the register referred to in subsection (1)(c) during office hours without payment.

3

The making of a false statement by a registered European lawyer in an application for a registration certificate may be treated as professional misconduct by him for the purposes of Part IV, unless he proves the statement was made without intention to deceive.

F3324B Issue of registration certificates

1

The Council shall issue to a registered European lawyer on application being made by him, a registration certificate in accordance with rules made by them under section 24A.

2

The Council shall not issue a registration certificate to a registered European lawyer while his registration is suspended or withdrawn.

F3424C Discretion of Council in special cases

1

In any case where this section has effect, the applicant shall, unless the Council otherwise order, give to the Council, not less than 6 weeks before he applies for a renewal of a registration certificate, notice of his intention to do so; and the Council may in their discretion–

a

grant or refuse the application; or

b

decide to issue a registration certificate to the applicant subject to such conditions as the Council may think fit.

2

Subject to subsections (3) and (4) below, this section shall have effect in any case where a registered European lawyer applies for a renewal of a registration certificate–

a

not having held a registration certificate in force within the period of 12 months following the date of his registration; or

b

when a period of 12 months or more has elapsed since he held a registration certificate in force; or

c

without having paid in full any fine imposed on him under Part IV; or

d

without having paid in full any expenses for which he has been found liable under section 38 or Part IV; or

e

when, having been suspended from practice, the period of suspension has expired; or

f

when, having had his registration withdrawn, he has been registered again; or

g

after his estate has been sequestrated or he has granted a trust deed for behoof of creditors, whether he has obtained his discharge or not; or

h

when, after a complaint has been made–

i

ii

of delay in disposal of the business of a client he has not completed that business within such period as the Council may fix as being a reasonable period within which to do so,

and in either case has been notified in writing by the Council accordingly; or

i

3

Where a registration certificate free of conditions is issued by the Council under subsection (1) to a registered European lawyer to whom that subsection has effect by reason of any such circumstances as are mentioned in paragraphs (a), (b), (e), (f) or (g) of subsection (2), this section shall not thereafter have effect in relation to that registered European lawyer by reason of those circumstances.

4

Where the Council decide to issue a registration certificate subject to conditions, they may, if they think fit, postpone the issue of the registration certificate pending the hearing and determination of an appealunder section 24D.

F3524D Appeals from decisions of Council

1

Where–

a

an application for a registration certificate is duly made to the Council otherwise than in a case where section 24C has effect and the Council refuse or neglect to issue a registration certificate, the applicant;

b

the Council refuse to recognise a body corporate as being suitable in terms of section 34(1A) (b), the body corporate,

may apply to the court, who may make such order in the matter as it thinks fit.

2

Where the Council in exercise of the power conferred on them by section 24C, refuse to issue a registration certificate, or issue a registration certificate subject to conditions, the applicant may appeal to the court against that decision within 14 days of being notified of it.

3

On an appeal to the court under subsection (2) the court may–

a

affirm the decision of the Council; or

b

direct the Council to issue a registration certificate to the applicant subject to such conditions if any as the court thinks fit; or

c

make such order as it thinks fit.

F3624E Date and expiry of registration certificate

1

Every registration certificate issued in November of any year shall bear the date of 1st November in that year, and every other registration certificate shall bear the date on which it was issued.

2

Every registration certificate shall have effect from the date it bears under subsection (1).

3

Subject to subsection (4), every registration certificate shall expire on 31st October next after it is issued.

4

On the name of a registered European lawyer being withdrawn from the register or on a registered European lawyer being suspended from practice as a registered European lawyer, any registration certificate for the time being in force of that registered European lawyer shall cease to have effect, but in the case of suspension, if he ceases to be so suspended during the period for which the registration would otherwise have continued in force, the registration certificate shall thereupon again have effect.

F3724F Suspension of registration certificate

1

If–

a

in pursuance of the Mental Health (Scotland) Act 1984 F230 a registered European lawyer is, by reason of mental disorder, admitted to a hospital and becomes liable to be detained there or becomes subject to guardianship;

b

acurator bonis is appointed on the estate of a registered European lawyer;

c

the estate of a registered European lawyer is sequestrated;

d

a registered European lawyer grants a trust deed for behoof of creditors;

e

a judicial factor is appointed on the estate of a registered European lawyer;

any registration certificate for the time being in force of that registered European lawyer shall cease to have effect, and he shall be suspended from practice as a registered European lawyer.

2

On the occurrence of any of the circumstances mentioned in subsection (1), the registered European lawyer in question shall intimate those circumstances to the Council in writing immediately.

3

On the occurrence of the circumstances mentioned in paragraph (d) or (e) of subsection (1) the trustee or as the case may be the judicial factor shall intimate his appointment to the Council in writing immediately.

F3824G Further provisions relating to suspension of registration certificate

1

The provisions of this section shall have effect in relation to a registration certificate which has ceased to have effect by virtue of section 24F during the period when that registration certificate would, but for that section, have continued in force.

2

A registration certificate which has ceased to have effect by virtue of paragraph (c) or (d) of section 24F(1) shall again have effect on the registered European lawyer being granted his discharge.

3

A registration certificate which has ceased to have effect by virtue of paragraph (e) of section 24F(1) shall again have effect on the judicial factor being granted his discharge.

4

Where a registered European lawyer is suspended from practice as a registered European lawyer by virtue of paragraph (a) or (b) of section 24F(1), the period of suspension shall, for the purposes of section 24C(2)(e), expire on the registered European lawyer ceasing to be liable to be detained or subject to guardianship or, as the case may be, on thecurator bonis being discharged.

5

Where a registered European lawyer is suspended from practice as a registered European lawyer by virtue of paragraph (c), (d) or (e) of section 24F(1), he may at any time apply to the Council to terminate the suspension.

6

On an application under subsection (5), the Council may either–

a

grant the application with or without conditions; or

b

refuse the application.

7

If on an application by a registered European lawyer under subsection (5) the Council refuse the application or grant it subject to conditions, the registered European lawyer may appeal against the decision to the court, who may–

a

affirm the decision; or

b

vary any conditions imposed by the Council; or

c

terminate the suspension either with or without conditions.

Rights of Solicitors

25 Rights of practising.

Every person qualified to practise as a solicitor in accordance with section 4 may practise as a solicitor in any court in Scotland.

25AF209 Rights of audience in the Court of Session, the House of Lords, the Judicial Committee of the Privy Council and the High Court of Justiciary.

1

Without prejudice to F210section 103(8) of the Criminal Procedure (Scotland) Act 1995 (right of solicitor to appear before single judge) and section 48(2)(b) (extension of rights of audience by act of sederunt) of the Court of Session Act 1988, a solicitor who—

a

seeks a right of audience in, on the one hand, the Court of Session, the House of Lords and the Judicial Committee of the Privy Council or, on the other hand, the High Court of Justiciary; and

b

has satisfied the Council as to the requirements provided for in this section,

shall have a right of audience in those courts or, as the case may be, that court.

2

The requirements mentioned in subsection (1), in relation to the courts or, as the case may be, the court in which a solicitor seeks a right of audience, are that—

a

he has completed, to the satisfaction of the Council, a course of training in evidence and pleading in relation to proceedings in those courts or that court;

b

he has such knowledge as appears to the Council to be appropriate of—

i

the practice and procedure of; and

ii

professional conduct in regard to, those courts or that court; and

c

he has satisfied the Council that he is, having regard among other things to his experience in appropriate proceedings in the sheriff court, otherwise a fit and proper person to have a right of audience in those courts or that court.

3

Where a solicitor has satisfied the Council as to the requirements of subsection (2) in relation to the courts or, as the case may be, the court in which he seeks a right of audience the Council shall make an appropriate annotation on the roll against his name.

4

The Council shall make rules under this section as to—

a

the matters to be included in, the methods of instruction to be employed in, and the qualifications of the person who will conduct, any course of training such as is mentioned in subsection (2)(a); and

b

the manner in which a solicitor’s knowledge of the practice and procedure and professional conduct mentioned in subsection (2)(b) is to be demonstrated,

and separate rules shall be so made in relation to, on the one hand, the Court of Session, the House of Lords and the Judicial Committee of the Privy Council and, on the other hand, the High Court of Justiciary.

5

The Council shall make rules of conduct in relation to the exercising of any right of audience held by virtue of this section.

6

Where a solicitor having a right of audience in any of the courts mentioned in subsection (1) is instructed to appear in that court, those instructions shall take precedence before any of his other professional obligations, and the Council shall make rules—

a

stating the order of precedence of those courts for the purposes of this subsection;

b

stating general criteria to which solicitors should have regard in determining whether to accept instructions in particular circumstances; and

c

securing, through such of their officers as they think appropriate, that, where reasonably practicable, any person wishing to be represented before any of those courts by a solicitor holding an appropriate right of audience is so represented,

and for the purposes of rules made under this subsection the Inner and Outer Houses of the Court of Session, and the High Court of Justiciary exercising its appellate Jurisdiction, may be treated as separate courts.

7

Subsection (6) does not apply to an employed solicitor whose contract of employment prevents him from acting for persons other than his employer.

8

Subject to subsections (9) and (10), the provisions of section 34(2) and (3) apply to rules made under this section as they apply to rules made under that section and, in considering any rules made by the Council under subsection (5), the Lord President shall have regard to the desirability of there being common principles applying in relation to the exercising of rights of audience by all practitioners appearing before the Court of Session and the High Court of Justiciary.

9

The Council shall, after any rules made under subsection (4) have been approved by the Lord President, submit such rules to the Secretary of State, and no such rules shall have effect unless the Secretary of State, after consulting the Director in accordance with section 64A, has approved them.

10

The Council shall, after any rules made under subsection (5) have been approved by the Lord President, submit such rules to the Secretary of State.

11

Where the Secretary of State considers that any rule submitted to him under subsection (10) would directly or indirectly inhibit the freedom of a solicitor to appear in court or undertake all the work preparatory thereto he shall consult the Director in accordance with section 64A.

12

The Council may bring into force the rules submitted by them to the Secretary of State under subsection (10) with the exception of any such rule which he has, in accordance with section 64B, refused to approve.

13

Nothing in this section affects the power of any court in relation to any proceedings—

a

to hear a person who would not otherwise have a right of audience before the court in relation to those proceedings; or

b

to refuse to hear a person (for reasons which apply to him as an individual) who would otherwise have a right of audience before the court in relation to those proceedings, and where a court so refuses it shall give its reasons for that decision.

14

Where a complaint has been made that a solicitor has been guilty of professional misconduct in the exercise of any right of audience held by him by virtue of this section, the Council may, or if so requested by the Lord President shall, suspend him from exercising that right pending determination of that complaint under Part IV.

15

Where a function is conferred on any person or body by this section he or, as the case may be, they shall exercise that function as soon as is reasonably practicable.

Restriction on rights of practising

26 Offence for solicitors to act as agents for unqualified persons.

1

Any solicitor to whom this subsection applies who F211or incorporated practice which upon the account or for the profit of any unqualified person—

a

acts as agent in any action or proceedings in any court, or

b

permits or suffers his F211or, as the case may be, its name to be made use of in any way in any such action or proceedings; or

c

F212subject to subsection (4), draws or prepares any writ to which section 32 applies, or

d

F213subject to subsection (4), permits or suffers his F211or, as the case may be, its name to be made use of in the drawing or preparing of any such writ; or

e

does any other act to enable that person to appear, act or practise in any respect as a solicitor or notary public,

knowing that person not to be a qualified solicitor or notary public, as the case may be, shall be guilty of an offence.

2

Subsection (1) applies to any solicitor, not being a solicitor who is employed full-time on a fixed salary by a body corporate F214or employed by a law centre.

3

In this section “person” includes a body corporate F215but “unqualified person” does not include an incorporated practice.

F2164

Subsection (1)(c) and (d) shall not apply in relation to—

a

writs relating to heritable or moveable property drawn or prepared upon the account of or for the profit of independent qualified conveyancers providing conveyancing services within the meaning of section 23 (interpretation of sections 16 to 22) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990; or

b

papers to found or oppose an application for a grant of confirmation in favour of executors drawn or prepared upon the account of or for the profit of an executry practitioner or recognised financial institution providing executry services within the meaning of the said section 23.

F4027. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

28 Offence for solicitors who are disqualified to seek employment without informing employer.

Any person who—

a

has been struck off the roll; or

b

suspended from practice as a solicitor,

and while so disqualified from practice seeks or acceps employment by a solicitor in connection with that solicitors practice F217or by an incorporated practice without previously informing him F218or, as the case may be, it that he is so disqualified, shall be guilty of an offence.

F4129. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

C230 Liability for fees of other solicitor.

Where a solicitor F42or an incorporated practice, authorised by and acting for a client employs another solicitor F43or incorporated practice he F44or, as the case may be, it shall (whether or not he F44or, as the case may be, it discloses the client) be liable to the other solicitor F43or incorporated practice for that other solicitor’s F45or incorporated practice’s fees and outlays, unless at the time of the employment he F44or, as the case may be, it expressly disclaims any such liability.

Unqualified persons acting as solicitors

C4431 Offence for unqualified persons to pretend to be solicitor or notary public. C43

F2191

Any unqualified person (including a body corporate) who either by himself or together with others, wilfully and falsely—

a

pretends to be a solicitor or notary public; or

b

takes or uses any name, title, addition or description implying that he is duly qualified to act as a solicitor or a notary public or recognised by law as so qualified;

shall be guilty of an offence.

F220In this section, “unqualified person” does not include an incorporated practice.

F2212

Any person (including a body corporate) who either by himself or together with others, wilfully and falsely—

a

pretends to be an incorporated practice;

b

takes or uses any name, title, addition or description implying that he is an incorporated practice,

shall be guilty of an offence.

F2223

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

32 Offence for unqualified persons to prepare certain documents.

1

Subject to the provisions of this section, any unqualified person (including a body corporate) who draws or prepares—

a

any writ relating to heritable or moveable estate; or

b

any writ relating to any F223action or proceedings in any court; or

c

shall be recoverable by any person in any action or matter.

F228This section does not apply to an incorporated practice.F229or in relation to writs framed or drawn by a person who is, by virtue of an act of sederunt made under section 32 of the Sheriff Courts (Scotland) Act 1971, permitted to represent a party to a summary cause.

33AF46 Rules as to professional practice, conduct and discipline.

1

Any communication made to or by an incorporated practice in the course of its acting as such for a client shall in any legal proceedings be privileged from disclosure in like manner as if the body had at all material times been a solicitor acting for the client.

2

Any enactment or instrument making special provision in relation to a solicitor or other legal representative as to the disclosure of information, or as to the production, seizure or removal of documents, with respect to which a claim to professional privilege could be maintained, shall, with any necessary modifications, have effect in relation to an incorporated practice as it has effect in relation to a solicitor.

F4733B

1

Any communication made to or by a registered foreign lawyer in the course of his actings as such for a client shall in any legal proceedings be privileged from disclosure in like manner as if the registered foreign lawyer had at all material times been a solicitor acting for a client.

2

Any enactment or instrument making special provision in relation to a solicitor or other legal representative as to the disclosure of information, or as to the production, seizure or removal of documents, with respect to which a claim to professional privilege could be maintained, shall, with any necessary modifications, have effect in relation to a registered foreign lawyer as it has effect in relation to a solicitor.

Part III Professional Practice, Conduct and Discipline of Solicitors

Practice Rules

34 Rules as to professional practice, conduct and discipline.

1

Subject to subsections (2) and (3), the Council may, if they think fit, make rules for regulating in respect of any matter the professional practice, conduct and discipline of solicitors F48and incorporated practices.

F491A

Rules made under this section may—

a

provide as to the management and control by—

i

solicitors holding practicing certificates or their executors;

ii

other incorporated practices.

of bodies corporate carrying on businesses consisting of the provision of professional services such as are provided by individuals and firms practicing as solicitors being bodies the membership of which is restricted to such solicitors, executors and other incorporated practices;

b

prescribe the circumstances in which such bodies may be recognised by the Council as being suitable to undertake the provision of any such services;

c

prescribe the conditions which (subject to any exceptions provided by the rules) must at all times be satisfied by bodies corporate so recognised if they are to remain so recognised (which bodies, when and for so long as so recognised, are in this Act referred to as “incororated practices”;

d

regulate the conduct of the affairs of incorporated practices; and

e

provide—

i

for the manner and form in which applications for recognition under this section are to be made, and for the payment of fees in connection with such applications for recognition under this section are to be made, and for the payment of fees in connection with such applications;

ii

for regulating the names that may be used by incorporated practices;

iii

as to the period for which any recognition granted under this section shall (subject to the provisions of this Act) remain in force;

iv

for the revocation of any such recognition on the grounds that it was granted as a result of any error or fraud;

v

for the keeping by the Society of a list containing the names and places of business of all incorporated practices and for the information contained in any such list to be available for inspection;

vi

for rules made under any provision of this Act to have effect in relation to incorporated practices with such additions, omissions or other modifications as appear to the Council to be necessary or expedient;

vii

for empowering the Council to take such steps as they consider necessary or expedient to ascertain whether or not any rules applicable to incorporated practices by virtue of this section are being complied with.

F50and

f

make such additional or different provision as the Council think fit in relation to solicitors who, or incorporated practices which, are partners in or directors of multi-disciplinary practices.

2

The Council shall, before making any rules under this section or section 35—

a

send to each member of the Society a draft of the rules; and

b

thereafter submit the draft rules to a meeting of the Society; and

c

take into consideration any resolution passed at that meeting relating to amendments to the draft rules.

3

Rules made under this section or section 35 shall not have effect unless the Lord President after considering any objections he thinks relevant has approved the rules so made.

F513A

Without prejudice to subsection (3), any rule made, whether before or after the coming into force of this subsection, by the Council under this section or section 35 which has the effect of prohibiting the formation of multi-disciplinary practices shall not have effect unless the Secretary of State, after consulting the Director in accordance with section 64A, has approved it.

4

If any solicitor fails to comply with any rule made under this section that failure may be treated as professional misconduct for the purposes of Part IV.

F524A

A certificate purporting to be signed by an officer of the Society and stating that any body corporate is or is not an incorporated practice shall, unless the contrary is proved, be sufficient evidence of that fact.

4B

Subject to the provisions of this Act, the Secretary of State may, by order made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament, provide for any enactment or instrument passed or made before the commencement of section (1A) above and having effect in relation to solicitors to have effect in relation to incorporated practices with such additions, omissions, or other modifications as appear to him to be necessary or expedient.

Accounts rules

35 Accounts rules.

1

The Council shall, subject to section 34(2) and (3), make rules (in this Act referred to as “accounts rules”)—

a

as to the opening and keeping by solicitors F231and incorporated practices of accounts and deposits at the banks specified in subsection (2) F232or with a building society for moneys not belonging to them received by them in the course of their practice;

b

as to the opening and keeping by solicitors F231and incorporated practicesof—

i

a deposit or share account with a building society. . . F233, or

ii

an account showing sums on loan to a local authority,

being in either case for a client whose name is specified in the title of the account;

c

as to the keeping by solicitors F231and incorporated practices of books and accounts containing particulars and information as to money not belonging to them received, held or paid by them in the course of their practice;. . . F234

d

as to the action which the Council may take to enable them to ascertain whether or not the rules are being complied with. F235; and

e

as to the recovery from solicitors of fees and other costs incurred by the Council in ascertaining whether or not a solicitor who has failed to comply with the accounts rules has remedied that failure and is complying with the rules.

C452

The banks mentioned in paragraph (a) of subsection (1) are—

a

the Bank of England;

b

. . . F236

c

the National Savings Bank;

d

the Post Office, in the exercise of its powers to provide banking services;

F237e

an institution authorised under the Banking Act 1987;

f

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F238

and the rules may specify the location of the banks’ or companies’ branches at which the accounts are to be kept.

3

If any solicitor fails to comply with any rule made under this section that failure may be treated as professional misconduct for the purposes of Part IV.

4

Rules made under this section shall not apply to a solicitor—

a

who is in employment as solicitor to a Minister of the Crown or a Government Department or as an assistant or officer appointed to act under the direction of such solicitor; or

F239b

who is in employment to which Part V of the Legal Aid (Scotland) Act 1986 applies;

c

who is in employment in an office connected with the administration of a local authority or a statutory undertaking or a designated body to which he has been appointed by the authority or the statutory undertakers or the persons responsible for the management of that body by reason of his being a solicitor,

so far as regards monies received, held or paid by him in the course of that employment.

In this subsection—

“local authority” means a local authority within the meaning of the M15Local Government (Scotland) Act 1973;
“statutory undertakers” means any persons (including a local authority) authorised by any enactment or statutory order or any scheme made under or confirmed by an enactment to construct, work or carry on any railway, light railway, tramway, road transport, water transport, canal, inland navigation, dock, harbour, pier or lighthouse undertaking or any undertaking for the supply of gas, electricity, hydraulic power or water;
“designated body” means any body whether corporate or unincorporate for the time being designated by the Council for the purposes of this section.

C336 Interest on client’s money.

1

Accounts rules shall make provision for requiring a solicitor F53or and incorporated practice, in such cases as may be prescribed by the rules,. . . F54

a

to keep in a separate deposit or savings account at a bank F55or with a building society, or on a separate deposit receipt at a bank, for the benefit of the client money received for or on account of a client; or

F56aa

to keep in—

i

a deposit or share account with a. . . F57 building society; or

ii

an account showing sums on loan to a local authority,

being in either case an account kept by the solicitor in his F53or, as the case may be, the incorporated practice in itsown name for a specified client, money so received; or

b

to make good to the client out of the solicitor’s F53or, as the case may be, the incorporated practice’s own money a sum equivalent to the interest which would have accrued if the money so received had been kept as mentioned in paragraph (a) F58or (aa).

2

The cases in which a solicitor F59or incorporated practice may be required to act as mentioned in subsection (1) may be defined among other things by reference to the amount of any sum received or balance held or the period for which it is or is likely to be retained or held or both; and the rules may include provision for enabling a client (without prejudice to any other remedy) to require that any question arising under the rules in relation to the client’s money be referred to and determined by the Society.

3

Except as provided by the rules, a solicitor F60or incorporated practice shall not be liable by virtue of the relation between solicitor and client to account to any client for interest received by the solicitor F60or, as the case may be, the incorporated practice on monies lodged in an account F61at a bank or with a building society, or on deposit receipt, at a bank, being monies received or held for or on account of his F60or, as the case may be, its clients generally.

4

Nothing in this section or in the rules shall affect any arrangement in writing whenever made between a solicitor and his client F62or an incorporated practice and its client as to the application of the client’s money or interest on it.

prescribing—

i

that other method;

ii

the terms and conditions to be observed in connection therewith; and

iii

the procedure to be followed by solicitors F67or incorporated practices desiring to adopt that other method, and

b

containing such incidental, consequential and supplementary provisions relative thereto as the Council may consider necessary or proper;

and a solicitor who satisfies the Council that he F67or, as the case may be, an incorporated practice which satisfies the Council that it is complying with rules made under this subsection shall not be required to deliver an accountant’s certificate in pursuance of subsection (2).

7

A certificate under the hand of the secretary of the Society certifying that a specified solicitor F68or incorporated practice has or has not, as the case may be, delivered to the Council an accountant’s certificate, or supplied any evidence required from him F68or, as the case may be, it under this section or under the accountant’s certificate rules or, as the case may be, under any rules made under subsection (6), shall, unless the contrary is proved, be evidence of the fact so certified.

8

Failure by a solicitor to comply with any provision of this section or of the accountant’s certificate rules or of any rules made under subsection (6), so far as applicable to him, may be treated as professional misconduct for the purposes of Part IV.

Powers of Council to intervene

C4638 Powers where dishonesty alleged.

1

If the Council have reasonable cause to believe that a solicitor or an employee of his F240or an incorporated practice or any employee thereof has been guilty of any such dishonesty as is mentioned in section 43(2) they may—

a

require the production or delivery to any person appointed by the Council at a time and place fixed by the Council of the documents to which this section applies;

b

take possession of all such documents; and

c

apply to the Court for an order that no payment be made by any banker, building society or other body named in the order out of any banking account or any sum deposited in the name of such solicitor or his firm F240or, as the case may be, such incorporated practice without the leave of the Court and the Court may make such order.

2

This section applies to the following documents—

a

all books, accounts, deeds, securities, papers and other documents in the possession or control of such solicitor or his firm F241or, as the case may be, such incorporated practice;

b

all books, accounts, deeds, securities, papers and other documents relating to any trust of which he is a sole trustee or is a co-trustee only with one or more of his partners or employees F241or, as the case may be, of which the incorporated practice or one of its employees is a sole trustee or it is a co-trustee only with one or more of F242its employees.

3

Part II of Schedule 3 shall have effect in relation to the powers of the Council under this section.

C4739 Powers where delay alleged.

1

If—

a

a complaint is made to the Society that there has been undue delay on the part of a solicitor F243or an incorporated practice in dealing with any matter in which he or his firm F243or, as the case may be, it is or has been concerned in a professional capacity, or any matter relating to a trust of which he is or was the sole trustee, or a co-trustee only with one or more of his partners or employees F243or, as the case may be, the incorporated practice or one of its employees was the sole trustee or it was a co-trustee only with one or more of its employees, and

b

the Council are of opinion that the delay ought to be investigated,

the Council may by notice in writing at any time, and from time to time, require the solicitor F243or, as the case may be, incorporated practice to give an explanation of the delay.

2

Any notice given by the Council under subsection (1) may specify a period, not being less than 21 days, within which they require an explanation to be furnished; and if within that period the solicitor F244or, as the case may be, incorporated practice does not reply or fails to furnish an explanation which the Council regard as sufficient and satisfactory, and he F244or, as the case may be, it is so informed in writing, section 38 shall apply in relation to that solicitor and his firm F244or, as the case may be, to that incorporated practice in so far as it relates to documents or payments connected with the matter complained of (but not otherwise) and shall so apply notwithstanding that the Council may not have reasonable cause to believe that the solicitor F244or, as the case may be, incorporated practice has been guilty of any such dishonesty as is mentioned in section 43(2).

C639AF69 Powers where excessive fees etc charged.

1

This section applies where the Council are satisfied, in the case of any solicitor or incorporated practice, after inquiry and after giving the solicitor or incorporated practice an opportunity of being heard, that the solicitor or incorporated practice has issued an account for professional fees and outlays of an amount which is grossly excessive (whether or not the account has been paid by or on behalf of the client or debited by the solicitor or incorporated practice to the account of any sums held on behalf of the client).

2

Where this section applies the Council may—

a

in the case of a solicitor, withdraw his practising certificate; or

b

in the case of an incorporated practice, withdraw the practising certificates of all or any of the solicitors who are directors of the incorporated practice;

and a certificate so withdrawn shall cease to have effect and the solicitor shall be suspended from practice as a solicitor.

3

On being satisfied by the solicitor or, as the case may be, incorporated practice that he or it has complied with the requirements of subsection (4) the Council, unless they are of the opinion that the solicitor or incorporated practice is liable to disciplinary proceedings under Part IV, shall terminate the suspension from practice of the solicitor or solicitors concerned and shall restore to him or them any practising certificates held by him or them for the practice year then current.

4

The requirements referred to in subsection (3) are—

a

to submit the account to the Auditor of the Court of Session for taxation together with all documents in the possession or control of the solicitor or incorporated practice which relate to the matters in respect of which the account was issued; and

b

to refund to the client a sum not less than the relevant amount.

5

The Council shall be entitled to be represented at a diet for taxation by virtue of subsection (4)(a) and to make representations to the Auditor of Court.

6

Where, on taxation of an account by virtue of subsection (4)(a), the amount due in respect of the account as taxed is the amount specified in the account as issued, the fee of the Auditor of Court shall be paid by the Council; but in any other case the fee shall be paid by the solicitor or, as the case may be, the incorporated practice.

7

In subsection (4)(b) “the relevant amount” is the amount (if any) by which the sum received by the solicitor or incorporated practice in respect of the account exceeds the amount due in respect of the account as taxed.

8

A solicitor may, within 21 days of receiving written notice of a decision of the Council under subsection (2) to withdraw his practising certificate, appeal to the Court against that decision; and on any such appeal the Court may give such directions in the matter, including directions as to the expenses of the proceedings before the Court, as it may think fit; and the order of the Court shall be final.

9

The withdrawal of a solicitor’s practising certificate under subsection (2) shall be without prejudice to the operation of section 35(3) or section 37(8).

C740 Powers where failure to comply with accounts rules etc.

1

Where the Council are satisfied, in the case of any solicitor F70or incorporated practice, after enquiry and after giving the solicitor F70or, as the case may be, incorporated practice an opportunity of being heard, that the solicitor F70or, as the case may be, incorporated practiceF71has failed or is failing to comply with any provisions of—

a

section 35 or the accounts rules made under that section, or

b

section 37 or the accountant’s certificate rules or other rules made under that section,

so far as applicable in his F70or, as the case may be, its case (in this section referred to as “the applicable provisions”), the Council may, subject to the provisions of this section

F72a

withdraw the practising certificate held by the solicitor F73or, as the case may be—

b

withdraw the practising certificate or certificates of any or all of the solicitors who are directors of the incorporated practice,

and a certificate so withdrawn shall thereupon cease to have effect and the solicitor shall be suspended from practice as a solicitor.

2

On being satisfied by the solicitor that he F74or, as the case may be, by the incorporated practice that it is able and willing to comply with the applicable provisions, the Council, unless they are of opinion that the solicitor F74or, as the case may be, the incorporated practice is liable to disciplinary proceedings under Part IV, shall terminate the suspension from practice of the solicitor F75or solicitors concerned and shall restore to him or them any practicing certificate or certificates held by him or them for the practice year then current.

3

Within 21 days after receiving written notice of a decision of the Council under this section to withdraw his practising certificate, or to refuse to terminate his suspension from practice, the solicitor may appeal to the Court against F76a decision; and on any such appeal the Court may give such directions in the matter, including directions as to the expenses of the proceedings before the Court, as it may think fit; and the order of the Court shall be final.

4

Any withdrawal of a solicitor’s practising certificate by the Council in exercise of the power conferred by subsection (1) shall be without prejudice to the operation of section 35(3) or section 37(8).

C841 Appointment of judicial factor.

deposit or share account with a. . . F89 building society; or

b

account showing sums on loan to a local authority,

being in either case an account kept by the solicitor in his own name F87or, as the case may be, by the incorporated practice in its own name for a specified client.

4

For the purposes of this section any reference to an account at a bank includes a reference to a deposit receipt at a bank.

42ZAF91Unsatisfactory professional conduct: Council's powers

1

Where a conduct complaint suggesting unsatisfactory professional conduct by a practitioner who is a solicitor is remitted to the Council under section 6(a) or 15(5)(a) of the 2007 Act, the Council must having—

a

investigated the complaint under section 47(1) of that Act and made a written report under section 47(2) of that Act;

b

c

b

subsection (13)(b) is not to be made unless a draft of the instrument has been laid before, and approved by resolution of, the Scottish Parliament.

15

In this section, “complainer” means the person who made the complaint and, where the complaint was made by the person on behalf of another person, includes that other person.

42ZBUnsatisfactory professional conduct: Council's powers to monitor compliance with direction under section 42ZA(4)

1

The Council shall, by notice in writing, require every solicitor who is specified in—

a

a direction made under section 42ZA(4); or

b

such a direction as confirmed or varied on appeal by—

i

the Tribunal; or

ii

they may take such of the steps mentioned in subsection (2) as they think fit.

2

The steps referred to in subsection (1) are—

a

to determine that the amount of the fees and outlays to which the solicitor shall be entitled for the services shall be—

i

nil; or

ii

such amount as the Council may specify in the determination,

and to direct the solicitor to comply, or secure compliance, with such of the requirements set out in subsection (3) as appear to them to be necessary to give effect to the determination;

b

to direct the solicitor to secure the rectification at his own expense of any such error, omission or other deficiency arising in connection with the services as the Council may specify;

c

to direct the solicitor to take, at his own expense, such other action in the interests of the client as the Council may specify.

F246d

to direct the solicitor to pay to the client by way of compensation such sum, not exceeding £1,000, as the Council may specify.

3

The requirements referred to in subsection (2)(a) are—

a

to refund, whether wholly or to any specified extent, any amount already paid by or on behalf of the client in respect of the fees and outlays of the solicitor in connection with the services;

b

to waive, whether wholly or to any specified extent, the right to recover those fees and outlays.

4

Before making a determination in accordance with subsection (2)(a) the Council may submit the solicitor’s account for the fees and outlays to the Auditor of the Court of Session for taxation.

5

Where a solicitor in respect of whom a complaint of inadequate professional services is made was, at the time when the services were provided, an employee of another solicitor, a direction under this section shall specify and apply to that other solicitor as well as the solicitor in respect of whom the complaint is made.

6

The Council shall intimate a determination or direction made under this section to every solicitor specified in it by sending a copy of the determination or direction to him.

7

A solicitor in respect of whom a determination or direction has been made under this section may, within 21 days of the date on which the determination or direction is intimated to him, appeal to the Tribunal against the determination or direction.

8

In the foregoing provisions of this section—

“client”, in relation to any matter in which a solicitor has been instructed, includes any person on whose behalf the person who gave the instructions was acting;
“complaint” includes a complaint of provision of inadequate professional services remitted to the Council by the Tribunal under paragraph 8A of Schedule 4; and
“solicitor” includes—

a

any solicitor, whether or not he had a practising certificate in force at the time of provision of the professional services which are alleged to be inadequate, and notwithstanding that subsequent to that time he has had his name removed from or struck off the roll, ceased to practise or been suspended from practice;

b

a firm of solicitors, whether or not, since the provision of the professional services which are alleged to be inadequate—

i

there has been any change in the firm by the addition of a new partner or the death or resignation of an existing partner; or

ii

the firm has ceased to practise; and

c

an incorporated practice, whether or not, since the provision of the professional services which are alleged to be inadequate—

i

there has been any change in the persons exercising the management and control of the practice; or

ii

the practice has ceased to be recognised by virtue of section 34(1A) or has been wound up.

C4942BF247 Inadequate professional services: Council’s powers to monitor compliance with directions.

1

The Council shall, by notice in writing, require every solicitor specified in—

a

a direction made under section 42A; or

b

such a direction as confirmed or varied on appeal by—

i

the Tribunal; or

ii

the Court,

to give, within such period being not less than 21 days as the notice may specify, an explanation of the steps which he has taken to comply with the direction.

2

Where an appeal is made under subsection (7) of section 42A against a direction made under that section, any notice under subsection (1)(a) above relating to that direction shall cease to have effect.

3

Where an appeal is made by virtue of subsection (2) of section 53B against a decision of the Tribunal under subsection (1) of that section, any notice under subsection (1)(b)(i) above relating to the direction confirmed or varied by that decision shall cease to have effect.

4

In this section “solicitor” has the same meaning as in section 42A(8).

C1042CF90 Powers to examine documents and demand explanations in connection with complaints.

1

Where the Council are satisfied that it is necessary for them to do so for the purpose of investigating a complaint made to them or remitted to them by the Tribunal alleging—

a

professional misconduct by a solicitor;

b

the failure of an incorporated practice to comply with any provision of this Act or of rules made under this Act applicable to that practice; or

c

the provision by a solicitor or an incorporated practice of inadequate professional services,

is permitted under the Insurance Companies Act 1982 to carry on insurance business of class 13 in Schedule 2 to that Act or, being an insurance company the head office of which is in a member State, is permitted under the law of a member State other than the United Kingdom to carry on insurance business of a corresponding class; or

b

is permitted under the Insurance Companies Act 1982 to carry on insurance business of classes 1, 2, 14, 15, 16 and 17 in that Schedule or, being an insurance company the head office of which is in a member State, is permitted under the law of a member State other than the United Kingdom to carry on insurance business of corresponding classes;

“professional liability” means any civil liability incurred by a solicitor or former solicitor in connection with his practice or in connection with any trust of which he is or formerly was a trustee F256and, as respects incorporated practices, means any liability incurred by it which if it had been incurred by a solicitor would constitute such civil liability

C1145 Safeguarding interests of clients of solicitor struck off or suspended.

1

The following provisions of this section shall have effect in relation to the practice of a solicitor whose name is struck off the roll or who is suspended from practice as a solicitor under any provision of this Act F93and, in relation to any incorporated practice, the recognition under section 34(1A) of which is revoked.

2

F94In the case of a solicitor, The solicitor shall within 21 days of the material date satisfy the Council that he has made suitable arrangements for making available to his clients or to some other solicitor or solicitors F94or incorporated practice instructed by his clients or by himself—

a

all deeds, wills, securities, papers, books of accounts, records, vouchers and other documents in his or his firm’s possession or control which are held on behalf of his clients or which relate to any trust of which he is sole trustee or co-trustee only with one or more of his partners or employees, and

b

all sums of money due from him or his firm or held by

him or his firm on behalf of his clients or subject to any such trust as aforesaid.

F952A

In the case of an incorporated practice, it shall within 21 days of the material date satisfy the Council that it has made suitable arrangements for making available to its clients or to some other solicitor or solicitors or incorporated practice instructed by its clients or itself—

a

all deeds, wills, securities, papers, books of accounts, records, vouchers and other documents in its possession or control which are held on behalf of its clients or which relate to any trust of which it is sole trustee or co-trustee only with one or more of its employees; and

b

all sums of money due from it or held by it on behalf of its clients or subject to any trust as aforesaid.

3

If the solicitor F257or, as the case may be, incorporated practice fails so to satisfy the Council the provisions of Section 38 shall apply in relation to that solicitor F257or, as the case may be, incorporated practice, notwithstanding that the Council may not have reasonable cause to believe that he F257or, as the case may be, any director, manager, secretary or other employee of the incorporated practice has been guilty of any such dishonesty as is mentioned in section 43(2).

4

If the solicitor, immediately before the striking off or, as the case may be, the suspension,was a sole solicitor, the right to operate on, or otherwise deal with, any client account in the name of the solicitor or his firm shall on the occurrence of that event vest in the Society (notwithstanding any enactment or rule of law to the contrary) to the exclusion of any other person.

5

In this section—

“material date” means whichever is the latest of—
1. a
  the date when the order of the Tribunal or Court by or in pursuance of which the solicitor is struck off the roll or suspended from practice F96or, as the case may be, the recognition under section 34(1A) is revoked. is to take effect;
2. b
  the last date on which—
  1. i
    an appeal against that order may be lodged or an application may be made to the Court under section 54(2), or
  2. ii
    an appeal against a decision of the Council under section 40 may be lodged;
3. c
  the date on which any such appeal is dismissed or abandoned; and
“sole solicitor” means a solicitor practising under his own name or as a single solicitor under a firm name.

46 Safeguarding interests of clients in certain other cases.

1

Where the Council are satisfied that a sole solicitor is incapacitated by illness or accident to such an extent as to be unable to operate on, or otherwise deal with, any client account in the name of the solicitor, or his firm, and that no other arrangements acceptable to the Council have been made, the right to operate on, or otherwise deal with, that account shall vest in the Society (notwithstanding any enactment or rule of law to the contrary) to the exclusion of any other person so long, but only so long, as the Council are satisfied that such incapacity and absence of other acceptable arrangements continues.

2

Where a sole solicitor ceases to practise for any reason other than that his name has been struck off the roll or that he has been suspended from practice, and the Council are not satisfied that suitable arrangements have been made for making available to his clients or to some other solicitor or solicitors instructed by his clients or on their behalf—

a

all deed, wills, securities, papers, books of accounts, records, vouchers and other documents in his or his firm’s possession or control which are held on behalf of his clients or which relate to any trust of which he is the sole trustee, or a co-trustee only with one or more of his employees, and

b

all sums of money due from him or his firm or held by him or his firm on behalf of his clients or subject to any such trust as aforesaid,

the provision of section 38 shall apply in relation to that solicitor, notwithstanding that the Council may not have reasonable cause to believe that he has been guilty of any such dishonesty as is mentioned in section 43(2).

3

Where the sole solicitor dies—

a

the right to operate on or otherwise deal with any client account in the name of the solicitor or his firm shall vest in the Society (notwithstanding any enactment or rule of law to the contrary) to the exclusion of any personal representatives of the solicitor, and shall be exercisable as from the death of the solicitor; and

b

if the Council are not satisfied that suitable arangements have been made for making available to the solicitor’s clients or to some other solicitor or solicitors instructed by his clients or on their behalf—

i

all deeds, wills, securities, papers, books of accounts, records, vouchers and other documents which were in his or his firm’s possession or control which were held on behalf of his clients or which relate to any trust of which he was the sole trustee, or a co-trustee only with one or more of his employees, and

ii

all sums of money which were due from him or his firm or were held by him or his firm on behalf of his clients or subject to any such trust as aforesaid,

the provisions of section 38 shall apply in relation to that solicitor notwithstanding that the Council may not have reasonable cause to believe that he had been guilty of any such dishonesty as is mentioned in section 43(2).

4

In a case where the Society have operated on or otherwise dealt with a client account by virtue of subsection (3) the Society shall be entitled to recover from the estate of the solicitor who has died such reasonable expenses as the Society have thereby incurred.

5

In this section “sole solicitor” has the same meaning as in section 45.

C1247 Restriction on employing solicitor struck off or suspended.

1

Unless he has the written permission of the Council to do so, a solicitor shall not, in connection with his F97or, as the case may be, its practice as a solicitor, employ or remunerate any person who to his knowledge is disqualified from practising as a solicitor F97and, unless it has such permission, an incorporated practice shall not by reason of the fact that his name has been struck off the roll or that he is suspended from practice as a solicitor.

2

Any permission given by the Council for the purposes of subsection (1) may be given for such period and subject to such conditions as the Council think fit.

3

A solicitor F98or, as the case may be, incorporated practice aggrieved by the refusal of the Council to grant any such permission as aforesaid, or by any conditions attached by the Council to the grant thereof, may appeal to the Court; and on any such appeal the Court may give such directions in the matter as it thinks fit.

4

If any solicitor acts in contravention of this section or of any condition subject to which any permission has been given thereunder, his name shall be struck off the roll or he shall be suspended from practice as a solicitor for such period as the Tribunal, or, in the case of an appeal, the Court, may think fit F99and if any incorporated practice so acts its recognition under section 34(1A) shall be revoked.

48. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F100

Part IV Complaints and Disciplinary Proceedings

Lay Observer

F10149. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

The Scottish Solicitors’ Discipline Tribunal

50 The Tribunal.

1

For the purposes of this Part of this Act there shall be a tribunal, which shall be known as the Scottish Solicitors’ Discipline Tribunal and is in this Act referred to as “the Tribunal”.

2

Part I of Schedule 4 shall have effect in relation to the constitution of the Tribunal.

51 Complaints to Tribunal.

1

A complaint may be made to the Tribunal by the Council; and, for the purpose of investigating and prosecuting complaints, the Council may appoint a solicitor to act as fiscal.

2

The persons mentioned in subsection (3) may report to the Tribunal any case where it appears that a solicitor may have been guilty of professional misconduct (including any case where it appears that a solicitor may have been seeking to make extraordinary and apparently unjustified claims against his client F258or against the Scottish Legal Aid Fund) F259or an incorporated practice may have failed to comply with any provision of this Act or of rules made under this Act applicable to itF260or a solicitor or an incorporated practice may have provided inadequate professional services, and any such report shall be treated by the Tribunal as a complain under subsection (1).

3

The persons referred to in subsection (2) are—

a

the Lord Advocate;

b

any judge;

F261ba

the Dean of the Faculty of Advocates;

c

the Auditor of the Court of Session;

d

the Auditor of any sheriff court.

F262e

the Scottish Legal Aid Board.

F263f

the Scottish legal services ombudsman.

F2644

Where a report is made to the Tribunal under subsection (2) the Tribunal may, if it thinks fit, appoint a solicitor to prosecute the complaint and the expenses of the solicitor, so far as not recoverable from the solicitor complained against, shall be paid out of the funds of the Tribunal.

52 Procedure on complaints to Tribunal. C13

1

Part II of Schedule 4, shall have effect in relation to the procedure and powers of the Tribunal in relation to any complaint concerning a solicitor F102or an incorporated practice.

2

Subject to the other provisions of this Part, and of any rules of court made under this Act, the Tribunal, with the concurrence of the Lord President, may make rules—

a

for regulating the making, hearing and determining of complaints made to it under this Act; and

F103aa

for regulating the making, hearing and determining of appeals made to it under section 42A(7) or 53D(1);

b

generally as to the procedure of the Tribunal (including provision for hearings taking place in public or wholly or partly in private).

C1453 Powers of Tribunal.

1

Subject to the other provisions of this Part, the powers exercisable by the Tribunal under subsection (2) shall be exercisable if—

a

after holding an inquiry into a complaint against a solicitor the Tribunal is satisfied that he has been guilty of professional misconduct, or

b

a solicitor has (whether before or after enrolment as a solicitor), been convicted by any court of an act involving dishonesty or has been sentenced to a term of imprisonment of not less than 2 years F104, or

c

an incorporated practice has been convicted by any court of an offence, which conviction the Tribunal is satisfied renders it unsuitable to continue to be recognised under section 34(1A); or

d

after holding an inquiry into a complaint, the Tribunal is satisfied that an incorporated practice has failed to comply with any provision of this Act or of rules made under this Act applicable to it.

2

Subject to subsection (1), the Tribunal may—

a

order that the name of the solicitor be struck off the roll; or

b

order that the solicitor be suspended from practice as a solicitor for such time as it may determine; or

F105ba

order that any right of audience held by the solicitor by virtue of section 25A be suspended or revoked;

c

subject to subsection (3), impose on the solicitor F106or, as the case may be, the incorporated practice a fine not exceeding F107£10,000; or

d

censure the solicitor F106or, as the case may be, the incorporated practice; or

e

impose such fine and censure him F106or, as the case may be, itF108or

f

order that the recognition under section 34(1A) of the incorporated practice be revokedF109; or

g

order that an investment business certificate issued to a solicitor, a firm of solicitors or an incorporated practice be—

i

suspended for such time as they may determine; or

ii

subject to such terms and conditions as it may direct; or

iii

revoked.

3

The Tribunal shall not impose a fine under subsection (2)(c) in any of the circumstances mentioned in subsection (1)(b).

F1103A

The powers conferred by subsection (2)(c), (d) and (e) may be exercised by the Tribunal—

a

in relation to a former solicitor, notwithstanding that his name has been struck off the roll or that he has, since the date of the misconduct, conviction or sentence referred to in subsection (1)(a) or (b), ceased to practise as a solicitor or been suspended from practice;

b

in relation to a body corporate which was formerly an incorporated practice, notwithstanding that the body has, since the date of the conviction or failure referred to in subsection (1)(c) or (d), ceased to be recognised as an incorporated practice by virtue of section 34(1A).

F1113B

The power conferred by subsection (2)(ba) may be exercised by the Tribunal either independently of, or in conjunction with, any other power conferred by that subsection.

4

Any fine imposed by the Tribunal under subsection (2) shall be forfeit to Her Majesty.

5

Where the Tribunal have exercised the power conferred by subsection (2) to censure, or impose a fine on, a solicitor, or both to censure and impose a fine, the Tribunal may order that the solicitor’s practising certificate shall be subject to such terms and conditions as the Tribunal may direct; and the Council shall give effect to any such order of the Tribunal.

6

Where the Tribunal order that the name of a solicitor be struck off the roll, or that the solicitor be suspended from practice as a solicitor F112or that any right of audience held by the solicitor by virtue of section 25A be suspended or revoked, the Tribunal may direct that the order shall take effect on the date on which it is intimated to the solicitor; and if any such direction is given the order shall take effect accordingly.

F1136A

Where the Tribunal order that the recognition under section 34(1A) of an incorporated practice be revoked, the Tribunal shall direct that the order shall take effect on such date as the Tribunal specifies, being a date not earlier than 60 days after its order is intimated to the incorporated practice, and such an order shall take effect accordingly.

F1146B

Where the Tribunal make an order under subsection (2)(g), they may direct that the order shall take effect on the date on which it is intimated to the solicitor, firm or incorporated practice; and if any such direction is given the order shall take effect accordingly.

6C

The Council shall give effect to any order of the Tribunal under subsection (2)(g).

7

Where in relation to any such order as is mentioned in subsection (6) F115,(6A) or (6B) the Tribunal give a direction under F116subsection (6) or, as the case may be, subsection (6A)F117or (6B), and an appeal against the order is taken to the Court under section 54, the order shall continue to have effect pending the determination or abandonment of the appeal unless, on an application under subsection (2) of section 54, the Court, otherwise directs.

F1187A

In subsection (2)(g), section 53D(1) and paragraph 16(h) of Schedule 4, “investment business certificate” means a certificate issued by the Council under Rule 2.2 of the Solicitors (Scotland) (Conduct of Investment Business) Practice Rules 1988.

F1198

The Secretary of State may, by order made by statutory instrument subject to annullment in pursuance of a resolution of either House of Parliament, amend F120—

a

paragraph (c) of subsection (2) by substituting for the amount for the time being specified in that paragraph such other amount as appears to him to be justified by a change in the value of money.

F121b

the definition of “investment business certificate” in subsection (7A) by substituting for the reference to Rule 2.2 of the Solicitors (Scotland) (Conduct of Investment Business) Practice Rules 1988, or such reference replacing that reference as may for the time being be specified in that subsection, a reference to such Practice Rule as may from time to time replace Rule 2.2.

53ZAF125Remission of complaint by Tribunal to Council

1

Where, after holding an inquiry under section 53(1) into a complaint of professional misconduct against a solicitor, the Tribunal—

a

is not satisfied that he has been guilty of professional misconduct;

b

considers that he may be guilty of unsatisfactory professional conduct,

it must remit the complaint to the Council.

2

Where the Tribunal remits a complaint to the Council under subsection (1), it may make available to the Council any of its findings in fact in its inquiry into the complaint under section 53(1).

Where a solicitor fails to comply with a direction given by the Council under section 42ZA(4) (including such a direction as confirmed or varied on appeal by the Tribunal or, as the case may be, the Court) before the expiry of the period specified in the notice relating to that direction given to him under section 42ZB(1), or such longer period as the Council may allow, the direction shall be enforceable in like manner as an extract registered decree arbitral in favour of the Council bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland.

C5053AF265 Inadequate professional services: powers of Tribunal.

1

Subject to the other provisions of this Part where—

a

a complaint is made to the Tribunal that professional services provided by a solicitor in connection with any matter in which he has been instructed by a client were inadequate; and

b

the Tribunal, after inquiry and after giving the solicitor an opportunity to make representations, upholds the complaint,

it may take such of the steps mentioned in subsection (2) as it thinks fit.

2

The steps referred to in subsection (1) are—

a

to determine that the amount of the fees and outlays to which the solicitor shall be entitled for the services shall be—

i

nil; or

ii

such amount as the Tribunal may specify in the determination,

and by order direct the solicitor to comply, or secure compliance, with such of the requirements set out in subsection (3) as appear to it to be necessary to give effect to the determination;

b

to direct the solicitor to secure the rectification at his own expense of any such error, omission or other deficiency arising in connection with the services as the Tribunal may specify;

F266ba

to order that any right of audience held by the solicitor by virtue of section 25A be suspended or revoked;

c

to direct the solicitor to take, at his own expense, such other action in the interests of the client as the Tribunal may specify.

F267d

to direct the solicitor to pay the client by way of compensation such sum, not exceeding £1,000, as the Tribunal may specify.

3

The requirements referred to in subsection (2)(a) are—

a

to refund, whether wholly or to any specified extent, any amount already paid by or on behalf of the client in respect of the fees and outlays of the solicitor in connection with the services;

b

to waive, whether wholly or to any specified extent, the right to recover those fees and outlays.

4

Before making a determination in accordance with subsection (2)(a) the Tribunal may submit the solicitor’s account for the fees and outlays to the Auditor of the Court of Session for taxation.

5

6

A direction of the Tribunal under this section shall be enforceable in like manner as an extract registered decree arbitral in favour of the Council bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland.

7

Section 54(1) shall apply to a direction of the Tribunal under this section (but not to a decision to submit an account for taxation under subsection (4)) as it applies to a decision of the Tribunal relating to discipline under this Act.

8

In the foregoing provisions of this section “solicitor” and “client” have the same meanings as in section 42A(8).

Any person aggrieved by a decision of the Tribunal relating to discipline under this Act may within 21 days of the date on which the decision of the Tribunal is intimated to F270that person, appeal against the decision to the Court, and on any such appeal the Court may give such directions in the matter as it thinks fit, including directions as to the expenses of the proceedings before the Court and as to any order by the Trinbunal relating to expenses; and the order of the Court shall be final.

2

Where

F123a

the Tribunal has exercised the power conferred by section 53(6) to direct that its decision shall take effect on the date on which it is intimated to the solicitor concerned, the solicitor may, within 21 days of that date, apply to the Court for an order varying or quashing the direction in so far as it relates to the date of taking effect F124;

b

the Tribunal has ordered the revocation of the recognition under section 34(1A) of an incorporated practice, the incorporated practice may within 21 days of the date when the order is intimated to it apply to the court for an order varying (subject to the limit of 60 days referred to in subsection (6A) of section 53) the direction under that subsection;

; and on any such application the Court may make the order applied for or such other order with respect to the matter as it thinks fit.

54AF126Appeals from decisions of Tribunal: unsatisfactory professional conduct

1

A solicitor in respect of whom a decision has been made by the Tribunal under section 53ZB(1), (2), (3) or (4) may, before the expiry of the period of 21 days beginning with the day on which the decision is intimated to him, appeal to the Court against the decision.

2

A complainer may, before the expiry of the period of 21 days beginning with the day on which a decision by the Tribunal under section 53ZB to which this subsection applies is intimated to him, appeal to the Court against the decision.

3

Subsection (2) applies to the following decisions of the Tribunal under section 53ZB—

a

a decision under subsection (1)(a) quashing the Council's determination upholding the complaint;

b

a decision under subsection (1)(c) quashing or varying a direction by the Council that the solicitor pay compensation;

c

a decision under subsection (1)(f) directing the solicitor to pay compensation;

d

a decision under subsection (2)(b) not to direct the solicitor to pay compensation;

e

a decision under subsection (2)(c) confirming the Council's decision not to uphold the complaint;

f

a decision under subsection (3) confirming the Council's decision not to direct the solicitor to pay compensation;

g

a decision under subsection (4) quashing the Council's direction that the solicitor pay compensation or varying the amount of compensation directed to be paid.

4

On an appeal under subsection (1) or (2), the Court may give such directions in the matter as it thinks fit, including directions as to the expenses of the proceedings before the Court and as to any order by the Tribunal relating to expenses.

5

A decision of the Court under subsection (4) shall be final.

6

In this section, “complainer” has the same meaning as in section 42ZA.

The Court

C1655 Powers of Court

1

In the case of professional misconduct by any solicitor the Court may—

a

cause the name of that solicitor to be struck off the roll; or

b

suspend the solicitor from practice as a solicitor for such period as the Court may determine; or

F127ba

suspend the solicitor from exercising any right of audience held by him by virtue of section 25A for such period as the court may determine; or

bb

revoke any right of audience so acquired by him; or

c

fine the solicitor; or

d

censure him; and in any of those events,

e

find him liable in any expenses which may be involved in the proceedings before the Court.

2

Subject to subsection (3), a decision of the Court under this section shall be final.

3

A solicitor whose name has been struck off the roll in pursuance of an order made by the Court under subsection (1), may apply to the Court for an order directing his name to be restored to the roll and the Court may make such order.

F1283A

A solicitor whose rights of audience under section 25A have been revoked in pursuance of an order made by the court under subsection (1) may apply to the court for an order restoring those rights, and the court may make such order.

4

An application under subsection (3) shall be by way of petition and intimation of any such petition shall be made to the Tribunal who shall be entitled to appear and to be heard in respect of the application.

In this section, “complainer” has the same meaning as in section 42ZA.

C1756 Saving for jurisdiction of courts.

Except as otherwise expressly provided, nothing in this Part shall affect the jurisdiction exercisable by the Court, or by any inferior court, over solicitors.

C5356AF271 Further provision as to compensation awards.

1

The taking of any steps under section 42A(2) or 53A(2) shall not be founded upon in any proceedings for the purpose of showing that the solicitor in respect of whom the steps were taken was negligent.

2

A direction under section 42A(2)(d) or 53A(2)(d) to a solicitor to pay compensation to a client shall not prejudice any right of that client to take proceedings against that solicitor for damages in respect of any loss which he alleges he has suffered as a result of that solicitor’s negligence, and any sum directed to be paid to that client under either of those provisions may be taken into account in the computation of any award of damages made to him in any such proceedings.

3

The Secretary of State may by order made by statutory instrument amend subsection (2)(d) of sections 42A and 53A by substituting for the sum for the time being specified in those provisions such other sum as he considers appropriate.

4

Before making any such order the Secretary of State shall consult the Council.

5

An order made under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.

PART V Notaries Public

57 Admission and enrolment of solicitors as notaries public.

F1301

The offices and functions of—

a

the clerk to the admission of notaries public; and

b

the keeper of the register of notaries public,

are hereby transferred to the Council.

2

Any solicitor may apply to the Court to be admitted as a notary public; and on any such application the Court may so admit the applicant and may F131direct the Council to register him in the register of notaries public.

F1322A

A petition by the Council under section 6(3A) for the admission of a person as a solicitor may, if the person so requests, include an application for the person’s admission as a notary public; and an order on any such petition admitting that person as a solicitor may admit him as a notary public and direct the Council to register him in the register of notaries public.

2B

A petition by a person under section 6(2) for his admission as a solicitor may include an application for his admission as a notary public; and an order on any such petition admitting that person as a solicitor may admit him as a notary public and direct the Council to register him in the register of notaries public.

3

It shall not be necessary for any person to find caution on his admission as a notary public.

4

The procedure to be followed. . . F133 on any application by a F134person to be admitted a notary public may be prescribed by rules of court.

F1355

The Council may charge such reasonable fees as they consider appropriate in respect of the admission of any person as a notary public.

58 Removal from and restoration to register of names of notaries public.

1

b

take into consideration any representations made by any notary public on the draft.

3

Rules made under this section shall not have effect unless the Lord President, after considering any representations the Lord President thinks relevant, has approved the rules so made.

4

If a notary public fails to comply with any rule made under this section that failure may be treated as professional misconduct or unsatisfactory professional conduct on the part of the solicitor who is the notary public.

60. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F140

PART VI Miscellaneous And General

Miscellaneous

60AF142 Multi-national practices.

1

Subject to the provisions of this section, solicitors and incorporated practices may enter into multi-national practices with registered foreign lawyers.

2

The Council shall maintain a register of foreign lawyers, and may make rules with regard to registration; and, without prejudice to the generality of the foregoing, such rules may include provision as to—

a

the manner in which applications for registration are to be made;

b

the fees payable in respect of such applications;

c

conditions which may be imposed in respect of registration; and

d

the period for which any such registration is to run.

3

Section 34(2) and (3) apply to rules made under subsection (2) as they apply to rules made under that section.

4

Any foreign lawyer may apply to the Council to be registered as such for the purposes of this section and the Council shall, if they are satisfied that the legal profession of which the applicant is a member is so regulated as to make it appropriate for him to be allowed to enter into a multi-national practice with solicitors or incorporated practices, enter his name on the register.

5

Subject to subsection (6), the Secretary of State may by order made by statutory instrument provide that any enactment or instrument—

a

passed or made before the commencement of this section;

b

having effect in relation to solicitors; and

c

specified in the order,

shall have effect with respect to registered foreign lawyers as it has effect with respect to solicitors.

6

Before making any order under subsection (5), the Secretary of State shall consult the Council.

7

An order under subsection (5) may provide for an enactment or instrument to have effect with respect to registered foreign lawyers subject to such additions, omissions or other modifications as the Secretary of State specifies in the order.

8

No order shall be made under subsection (5) unless a draft of the order has been approved by both Houses of Parliament.

C1861 Protection of banks.

1

Subject to the provisions of this section, no bank F143or building society shall, in connection with any transaction on any account of a solicitor F144or an incorporated practice kept with it or with any other bank F143or building society—

a

incur any liability, or

b

be under any obligation to make any enquiry, or

c

be deemed to have any knowledge of any right of any person to any money paid or credited to the account,

which it would not incur, or be under, or be deemed to have (as the case may be) in the case of an account kept by a person entitled absolutely to all money paid or credited to it; but nothing in this subsection shall relieve a bank F143or building society from any liability or obligation under which it would be apart from this Act.

2

In subsection (1) “account” does not include an account kept by a solicitor F144or an incorporated practice as trustee for a specified beneficiary.

3

Notwithstanding anything in the preceding provisions of this section a bank F143or building society at which a solicitor F145or an incorporated practice keeps a special account for clients’ money shall not, in respect of any liability of the solicitor F145or, as the case may be, the incorporated practice to the bank F143or building society (not being a liability in connection with that account) have or obtain any recourse or right, whether by way of set-off, counter-claim, charge or otherwise, against money standing to the credit of that account.

C1961AF146 Solicitors fees.

1

Subject to the provisions of this section, and without prejudice to—

a

section 32(1)(i) of the M2Sheriff Courts (Scotland) Act 1971; or

b

section 5(h) of the M3Court of Session Act 1988,

where a solicitor and his client have reached an agreement in writing as to the solicitor’s fees in respect of any work done or to be done by him for his client it shall not be competent, in any litigation arising out of any dispute as to the amount due to be paid under any such agreement, for the court to remit the solicitor’s account for taxation.

2

Subsection (1) is without prejudice to the court’s power to remit a solicitor’s account for taxation in a case where there has been no written agreement as to the fees to be charged.

3

A solicitor and his client may agree, in relation to a litigation undertaken on a speculative basis, that, in the event of the litigation being successful, the solicitor’s fee shall be increased by such a percentage as may, subject to subsection (4), be agreed.

4

The percentage increase which may be agreed under subsection (3) shall not exceed such limit as the court may, after consultation with the Council, prescribe by act of sederunt.

62 Charge for expenses out of property recovered.

1

Where a solicitor has been employed by a client to pursue or defend any action or proceeding, the court before which the action or proceeding has been heard or is depending may declare the solicitor entitled, in respect of the taxed expenses of or in reference to the action or proceeding, to a charge upon, and a right to payment out of, any property (of whatsoever nature, tenure or kind it may be) which has been recovered or preserved on behalf of the client by the solicitor in the action or proceeding; and the court may make such order for the taxation of, and for the raising and payment of, those expenses out of the said property as the court thinks just.

2

Where a declaration has been made under subsection (1) any act done or deed granted by the client after the date of the declaration except an act or deed in favour of a bona fide purchaser or lender, shall be absolutely void as against the charge or right.

C2062AF147 Council’s power to recover expenses incurred under section 38, 45 or 46.

1

Without prejudice to the Society’s entitlement under section 46(4) to recover expenses, the Council shall be entitled to recover from a solicitor or incorporated practice in respect of whom it has taken action under section 38, 45, or 46, any expenditure reasonably incurred by it in so doing.

2

Expenditure incurred in taking action under section 38 is recoverable under subsection (1) above only where notice has been served under paragraph 5(2) of Schedule 3 in connection with that action and—

a

no application has been made in consequence under paragraph 5(4) of that Schedule; or

b

the Court, on such an application, has made a direction under paragraph 5(5) of that Schedule.

General

C2163 Penalties and time limit for prosecution of offences

1

Any person guilty of an offence under this Act shall be liable on summary conviction to a fine not exceeding F148F149level 4 on the standard scaleF150 . . ..

2

Notwithstanding any provision of the M4Criminal Procedure (Scotland) Act 1975, the prosecution of any offence under this Act shall be commenced within 6 months of its first discovery by the prosecutor or in any event within 2 years after the commission of that offence.

F1513

Where an offence under this Act is committed by a body corporate and is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of—

a

any director, secretary or other similar officer of the body corporate; or

b

any person who was purporting to act in any such capacity,

he (as well as the body corporate) shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly.

4

Where an offence under this Act is committed by a partnership or by an unincorporated association (other than a partnership) and is proved to have been committed with the consent or connivance of a partner in the partnership or, as the case may be, a person concerned in the management or control of the association, he (as well as the partnership or association) shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly.

C2264 Service of notices etc.

Any notice or other document which is required or authorised under this Act to be given to, or served on, any person shall be taken to be duly given or served if it is delivered to him or left at, or sent by post to, his last-known place of business or residence F152or, in the case of an incorporated practice, it is left at, or delivered or sent by post to, its registered office.

64AF153 Advisory and supervisory functions of the Director General of Fair Trading.

1

Before considering any rule—

a

made under section 25A(4) or (5); or

b

such as is mentioned in section 34(3A),

the Secretary of State shall send a copy of the proposed rule in question to the Director.

2

The Director shall consider whether the rule in question would have, or would be likely to have, the effect of restricting, distorting or preventing competition to any significant extent.

3

require any person carrying on any business to furnish to him (whithin such time and in such manner and form as the notice may specify) such information as may be specified or described in the notice.

2

A person shall not be required under this section to produce any document or disclose any information which he would be entitled to refuse to produce or disclose on the grounds of confidentiality between a client and his professional legal adviser in any civil proceedings.

3

Subsections (5) to (8) of section 85 of the M16Fair Trading Act 1973 shall apply in relation to a notice under this section as they apply in relation to a notice under subsection (1) of that section.

64CAF157Enforcement of notices under section 64C

1

The court may, on an application by the Office of Fair Trading, enquire into whether any person (“the defaulter”) has refused or otherwise failed, without reasonable excuse, to comply with a notice under section 64C(1).

2

An application under subsection (1) shall include details of the possible failure which the Office of Fair Trading considers has occurred.

3

In enquiring into a case under subsection (1), the court shall hear any witness who may be produced against or on behalf of the defaulter and any statement which may be offered in defence.

4

Subsections (5) and (6) apply where the court is satisfied, after hearing any witnesses and statements as mentioned in subsection (3), that the defaulter has refused or otherwise failed, without reasonable excuse, to comply with a notice under section 64C(1).

5

The court may punish the defaulter as it would have been able to punish him had he been guilty of contempt of court.

6

Where the defaulter is a body corporate or is a partnership constituted under the law of Scotland, the court may punish any director, officer or (as the case may be) partner of the defaulter as it would have been able to punish that director, officer or partner had he been guilty of contempt of court.

64CBAltering, etc. documents required to be produced under section 64C

1

A person commits an offence if he intentionally alters, suppresses or destroys a document which he has been required to produce by a notice under section 64C(1).

2

A person who commits an offence under subsection (1) shall be liable—

a

on summary conviction, to a fine not exceeding the statutory maximum;

b

on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.

64DF156 Review of rules approved by the Secretary of State.

1

Without prejudice to the power of the Council to review any rule made by them, where the Secretary of State has approved a rule under section 64B he may, and if so requested by the Lord President shall, require the Council to review its terms.

2

When they have reviewed a rule following a requirement made under subsection (1), the Council may revise the rule in the light of that review, and shall then submit the rule as revised or, if they have not revised it, as previously approved to the Lord President and the Secretary of State.

3

Where the Lord President and the Secretary of State are agreed that the terms of the rule as submitted to them are satisfactory, the Secretary of State shall approve the rule, and may direct the Council to bring it into force as soon as is practicable.

4

Where either the Secretary of State or the Lord President is of the view that any rule, as submitted to them, is not satisfactory, but they do not agree as to what the terms of the rule should be, the rule shall continue to have effect as previously approved.

5

Where the Secretary of State and the Lord President agree both that any rule submitted to them under subsection (2) is not satisfactory, and as to what the terms of the rule should be, the Secretary of State may direct the Council—

a

to amend the rule in such manner as he and the Lord President consider appropriate; and

b

to bring the rule, as so amended, into force as soon as is practicable.

6

The provisions of sections 64A and 64B apply to rules submitted to the Secretary of State under this section as they apply to rules submitted to him under sections 25A(9) or (10) and 34(3A).

65 Interpretation.

1

In this Act, except in so far as the context otherwise requires—

“accounts rules” has the meaning given by section 35;
“accountant’s certificate rules” has the meaning given by section 37(3);
“advocate” means a member of the Faculty of Advocates;
F272“building society” means a building society within the meaning of the M17Building Societies Act 1986;
“client account” means a current or deposit or savings account F273at a bank or with a building society, or a deposit receipt, at a bank, being an account or, as the case may be, a deposit receipt in the title of which the word “client”, “trustee”, “trust” or other fiduciary term appears, including—
1. a
  an account or deposit receipt for a client whose name is specified in the title of the account on deposit receipt, and
2. b
  an account such as is mentioned in paragraphs (a) and (b) of section 35(1);
“the Council” has the meaning given by section 3;
“the Court” means the Court of Session;
F274“the Director” means the Director General of Fair Trading;
“foreign lawyer” means a person who is not a solicitor or an advocate but who is a member, and entitled to practise as such, of a legal profession regulated within a jurisdiction outwith Scotland;
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F275
“functions” includes powers and duties;
F276“inadequate professional services” means professional services which are in any respect not of the quality which could reasonably be expected of a competent solicitor, and cognate expressions shall be construed accordingly; and references to the provision of inadequate professional services shall be construed as including references to not providing professional services which such a solicitor ought to have provided;
F277“incorporated practice” has the meaning given by section 34(1A)(c);
“judge” includes sheriff;
F278“law centre” means a body—

a

established for the purpose of providing legal services to the public generally as well as to individual members of the public; and

b

which does not distribute any profits made either to its members or otherwise, but reinvests any such profits for the purposes of the law centre;

F279 . . .
“Lord President” means the Lord President of the Court of Session;
F280“multi-disciplinary practice” means a body corporate or a partnership—

a

having as one of its directors or, as the case may be, partners, a solicitor or an incorporated practice; and

b

which offers services, including professional services such as are provided by individual solicitors, to the public; and

c

where that solicitor or incorporated practice carries out, or supervises the carrying out of, any such professional services as may lawfully be carried out only by a solicitor;

“multi-national practice” means—

a

a partnership whose members are solicitors or incorporated practices and registered foreign lawyers; or

b

a body corporate whose members include registered foreign lawyers, and membership of which is restricted to solicitors, incorporated practices, registered foreign lawyers and other multi-national practices;

“notary public” means a notary public duly admitted in Scotland;
“practice year” means the year ending on 31st October;
“practising certificate” has the meaning given by section 4;
“property” includes property, whether heritable or moveable, and rights and interests in, to or over such property;
F281“registered foreign lawyer” means a foreign lawyer who is registered under section 60A;
“the roll” has the meaning given by section 7;
“the Society” has the meaning given by section 1;
F282“Scottish legal services ombudsman” means the ombudsman appointed under section 34 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990;
“solicitor” means any person enrolled or deemed to have been enrolled as a solicitor in pursuance of this Act;
“the Tribunal” has the meaning given by section 50;
“unqualified person” means a person F283, other than a multi-disciplinary practice, who is not qualified under section 4 to act as a solicitor.

2

Unless the context otherwise requires a reference—

a

in any enactment to law agents includes solicitors;

b

in any enactment to the register of law agents kept in pursuance of the M18Law Agents (Scotland) Act 1873 includes the roll;

c

in any enactment or instrument to the Solicitors Discipline (Scotland) Committee shall be construed as a reference to the Tribunal;

d

in any enactment or instrument or other document to the General Council of Solicitors in Scotland shall be construed as a reference to the Council;

e

in any enactment to a solicitor’s being entitled to practise in the Court, or in any other court, or to act in any matter, by reason of his being enrolled in, or of his having subscribed, the list of solicitors practising in that court, shall be construed as a reference to his being entitled so to practise or act be reason of his name being included in the appropriate list provided under section 20.

3

In this Act references to any enactment shall, except in so far as the context otherwise requires, be construed as references to that enactment as amended, extended or applied by or under any other enactment, including any enactment contained in this Act.

4

In this Act, except in so far as the context otherwise requires,—

a

any reference to a numbered Part, section or Schedule is a reference to the Part or Section of, or the Schedule to, this Act so numbered;

b

a reference in a section to a numbered subsection is a reference to the subsection of that section so numbered;

c

a reference in a section, subsection or Schedule to a numbered or lettered paragraph is a reference to the paragraph of that section, subsection or Schedule so numbered or lettered; and

d

a reference to any provision of an Act (including this Act) includes a reference to any Schedule incorporated in the Act by that provision.

66 Transitional and savings provisions, and repeals.

1

Schedule 6 (Transitional and savings provisions) shall have effect, but the provisions of that Schedule shall not be taken as prejudicing the operation of section 16 of the M5Interpretation Act 1978 (general savings in respect of repeals).

C232

The enactments specified in Schedule 7 are hereby repealed to the extent shown in column 3 of that Schedule.

67 Citation, extent and commencement.

1

This Act may be cited as the Solicitors (Scotland) Act 1980.

2

This Act extends to Scotland only.

3

This Act shall come into operation on the expiration of one month from the date on which it is passed.

SCHEDULES

SCHEDULE 1 The Law Society of Scotland

Section 1.

Constitution and Proceedings

1

The Society shall be a body corporate with a common seal and may sue and be sued in its own name.

2

The Council shall prepare a scheme providing for—

a

the constitution, election, and proceedings of the Council;

b

the meetings of the Society;

c

the appointment of a chairman, vice-chairman, secretary and other officers and employees of the Society;

d

the appointment and constitution of committees.

3

The scheme prepared under paragraph 2—

a

may make provision enabling the Council to admit as honorary members of the Society persons who have ceased to be practising solicitors, no such honorary member being entitled to vote at meetings of the Society or liable to pay an annual subscription;

b

shall make provision for the admission on application made in that behalf and on payment of the annual subscription as a member of the Society of any solicitor who by virtue of the provisions of section 24 is exempted from taking out a practising certificate;

c

may contain such other provisions with respect to the administration, management and proceedings of the Society as are considered necessary or proper and are consistent with the provisions of this Act.

4

A scheme prepared under paragraph 2 shall have effect on being approved by a resolution passed by a majority of the members present in person or by proxy at a general meeting of the Society, or at an adjournment of such meeting.

5

The Society may by a resolution passed by a majority consisting of not less than two-thirds of the members of the Society present in person or by proxy at a meeting of the Society of which due notice specifying the intention to propose the resolution has been given, or at any adjournment of such meeting, rescind, add to or amend any of the provisions of the scheme so approved.

Revenue

F1586

Subject to paragraph 7, every member of the Society shall, for each year, pay to the Society such subscription as may be fixed from time to time by the Society in general meeting.

6A

The subscription payable under paragraph 6 by a practising member (or the proportion of it so payable, calculated by reference to the number of months remaining in the practice year) shall be paid at the time of submission of his application for a practising certificate.

7

The. . . F159 subscription payable by a solicitor in respect of the year F160or part thereof in which he is first included in the roll of solicitors and in respect of each of the two years immediately following shall be one half of the amount of the. . . F159 subscription fixed under paragraph 6 F161(reduced, in the case of a solicitor first included in the roll for only part of a year, in that year proportionately).

F1627A

The Society shall have power, subject to paragraphs 7B to 7D, to impose in respect of any year a special subscription on all members of the Society of such amount and payable at such time and for such specified purposes as it may determine.

7B

The Society may determine that an imposition under paragraph 7A shall not be payable by any category of member or shall be abated as respects any category of member.

7C

An imposition under paragraph 7A or a determination under that paragraph or paragraph 7B may be made only in general meeting.

7D

No imposition may be made under paragraph 7A above unless a majority of those members F163voting at the general meeting at which it is proposed has, whether by proxy or otherwise, voted in favour of its being made.

8

Except as otherwise provided in this Act, the expenses of the Society shall be defrayed out of the subscriptions and other income received by the Society or the Council and out of other property belonging to the Society.

In this paragraph “expenses of the Society” includes the expenses of the Tribunal so far as not otherwise defrayed and any expenses incurred by the Council in the exercise of their functions under this Act, and the reasonable travelling and maintenance expenses of members of the Council or committees of the Council incurred in attending meetings of the Council or committees, or otherwise incurred in the business of the Society.

9

Paragraph 8 does not affect any trust constituted for a special purpose.

Powers

10

The Society may—

a

purchase or otherwise acquire land for any of the purposes of this Act;

b

sell, lease or otherwise dispose of land so acquired;

c

borrow for any of the purposes of this Act in such manner and on such security as they may determine;

d

invest any monies not immediately required to meet expenses and other outlays of the Society in any investment in which trustees in Scotland are by law authorised to invest (but nothing in this sub-paragraph prevents the investment of any monies forming any part of any property held in trust for a special purpose in any class of investment authorised by the deed constituting the trust);

e

accept any gift of property for the purposes of the Society;

f

accept, hold and administer any gift of property or hold as trustees any property for any purpose which the Society consider to be for the benefit of solicitors in Scotland or their dependants or employees or any substantial body of such solicitors or dependants or employees; and

g

subject to the provisions of this Act exercise the functions formerly exercised by the General Council of Solicitors in Scotland.

11

The Council may—

a

act for and in the name of the Society in any matter other than a matter which in accordance with the provisions of this Schedule is to be determined by the Society in general meeting;

b

without prejudice to any other powers they may have, take into consideration and make recommendations or representations with regard to any matters which are in their opinion of importance to solicitors in Scotland

F165 Exemption from liability for damages

Annotations:

Amendments (Textual)

F165

Sch. 1 para. 11A inserted (3.6.1991) by Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40, SIF 76:2), s. 74, Sch. 8 Pt. II para. 29(16); S.I. 1991/1252, art. 3, Sch. 1

F16411A

Neither the Society nor any of its officers or servants shall be liable in damages for anything done or omitted in the discharge or purported discharge of its functions unless the act or omission is shown to have been in bad faith.

Attestation

F16612

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

SCHEDULE 2 The Roll: F170Powers of the Council and Ancillary Provisions

Section 11.

Annotations:

Amendments (Textual)

F170

Words substituted by Solicitors (Scotland) Act 1988 (c. 42, SIF 76:2), s. 6(1), Sch. 1 para. 22(a)

1

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F167 the Council (as registrar of solicitors) for the purpose of maintaining the roll as correctly as is reasonably practicable F168shall have power—

a

to remove from the roll the name of any solicitor who has died;

b

to send to any solicitor at his address as shown in the roll a letter enquiring whether he wishes to continue to have his name included in the roll and intimating that if no reply is made within the period of 6 months beginning with the date of the posting of the letter his name may be removed from the roll;

c

to send any solicitor on the roll who has for at least 3 years been so enrolled in pursuance of regulations made by the Council under section 5 on an undertaking by him to serve a post qualifying year for practical training which the Council are not satisfied that he has implemented, a letter enquiring whether he intends to fufil that undertaking and intimating that unless a reply which the Council regard as satisfactory is received within the period of 6 months beginning with the date of the posting of the letter his named may be removed from the roll; and

d

if a reply indicating that he does not wish that his name shall continue to be included in the roll is returned by any solicitor to whom a letter has been so sent, or if no reply or in a case of a letter sent under subparagraph (c) a reply which the Council do not regard as satisfactory is returned within the period mentioned in subparagraph (b) or (c), as the case may be, by any such solicitor, to remove the name of that solicitor from the roll.

2

The Council may, on the application of a solicitor whose name has been removed from the roll in pursuance of paragraph 1(d), and on payment by him to the Council of such reasonable fee in respect of restoration as the Council may fix, order that his name shall be restored to the roll.

3

Any person aggrieved by a decision of the Council under paragraph 2 may appeal against the decision to the Court, and the provisions of section 40(3) shall, subject to any necessary modifications, apply to any such appeal.

F1694

Subject to section 7(3), the Council may charge such reasonable fees (including an annual fee payable by enrolled solicitors) as they may fix in connection with the keeping of the roll.

SCHEDULE 3

Section 43.

PART 1 The Scottish Solicitors Guarantee Fund

Contributions by Solicitors

1

Subject to the provisions of this Act, there shall be paid to the Society on behalf of the Guarantee Fund by every solicitor in respect of each year during which, or part of which, he is in practice as a solicitor, along with his application for a practising certificate, a contribution (hereafter referred to as an “annual contribution”). . . F171

2

The sum payable by a solicitor in respect of the year in which he first commences to practise after admission and in respect of each of the 2 years immediately following shall be one half of the annual contribution.

F1722A

Sub-paragraphs (1) and (2) do not apply to solicitors who are directors of incorporated practices.

2B

Subject to the provisions of this Act, there shall be paid to the Society on behalf of the Guarantee Fund by every incorporated practice in respect of each year during which, or part of which, it is recognised under section 34(1A) a contribution (hereafter referred to as an “annual corporate contribution”) in accordance with the scale of such contributions refered to in sub-paragraph (3).

3

The Council shall not later than F17330 September in each year fix the amount, if any, of the annual contribution to be paid in respect of the following year F174and the scale of the annual corporate contributions to be so paid, which scale shall be fixed by reference to factors which shall include the number of solicitors who are directors or employees of each of the incorporated practices to which the scale relates.

4

No annual contribution shall be payable by a solicitor F174and no annual corporate contribution by an incorporated practice so long as the amount of the Guarantee Fund including the value of all investments forming part of the Fund and after providing for all outstanding liabilities, is in the opinion of the Council not less than £250,000 or such other sum as the Council may from time to time determine.

5

If at any time the Council are of the opinion that the liabilities of the Guarantee Fund render it expedient in order to secure the financial stability of the Fund, the Council may, by resolution of which not less than 10 days’ previous notice in writing has been given to each member of the Council impose upon every solicitor a contribution (hereafter referred to as a “special contribution”) of the amount specified in the resolution, and F175upon every incorporated practice a contribution (hereafter referred to as a “special corporate contribution”) in accordance with a scale of such contributions fixed by the Council as under sub-paragraph (3), and a special or special corporate contribution shall be payable to the Society in one sum or, if the Council so determine, by instalments on or before such date or dates as may be specified in the resolution.

6

No special contribution shall be payable by a solicitor in the year in which he first commences to practise after admission nor in either of the 2 years immediately following.

7

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F176

8

No annual contribution and no special contribution shall be payable by any solicitor who is in the employment of another solicitor or of a firm of solicitors F174or of an incorporated practice and who does not engage in practice as a solicitor on his own account.

9

Without prejudice to any other method of recovering contributions payable to the Society under this Schedule whether annual or special a practising certificate shall not be issued to a solicitor except on production of evidence of payment of the contributions (if any) due by him to the Fund on or before the issue of the certificate.

10

In this schedule the expression “year” means the period of 12 months commencing on 1 November or such other day as may be fixed by the Council.

F179 Contributions by registered European lawyers

Annotations:

Amendments (Textual)

F179

Sch. 3 para. 1A and cross-heading inserted (22.5.2000) by The European Communities (Lawyer's Practice) (Scotland) Regulations 2000 (S.S.I. 2000/121), regs. 1(1), 37(1), Sch. 1 para. 1(13)

1A

1

Subject to the provisions of this paragraph, paragraph (1) above shall apply to registered European lawyers as it applies to solicitors and references to a practising certificate shall include references to a registered European lawyer’s registration certificate.

2

Where a registered European lawyer can prove that–

a

he is covered by a guarantee provided in accordance with the professional rules of his home State; and

b

the guarantee is equivalent in terms of the conditions and the extent of its cover to the Guarantee Fund,

then to the extent that there is such equivalence that lawyer shall be exempt from the requirements of paragraph (1).

3

Where the equivalence under sub paragraph (2) is only partial, the Society may specify the guarantee obligations a registered European lawyer is required to meet to comply with paragraph (1).

4

Subparagraphs (2), (6) and (8) of paragraph (1) shall not apply.

5

For the purposes of this paragraph the words “home State" have the same meaning as provided for in regulation 2 of the European Communities (Lawyer’s Practice) (Scotland) Regulations 2000.

F180Contributions by registered foreign lawyers

Annotations:

Amendments (Textual)

F180

Sch. 3 para. 1B and cross-heading inserted (1.10.2004) by The Solicitors (Scotland) Act 1980 (Foreign Lawyers and Multi-national Practices) Regulations (S.S.I. 2004/383), {reg. 12}

1B

1

Subject to the provisions of this paragraph, paragraph 1 above shall apply to registered foreign lawyers as it applies to solicitors and in that paragraph as so applied references to a practising certificate shall be construed as references to a registered foreign lawyer’s registration certificate.

2

Where a registered foreign lawyer can prove that–

a

he is covered by a guarantee provided in accordance with the rules of the legal profession of which he is a member; and

b

the guarantee is equivalent in terms of the conditions and the extent of its cover to the Guarantee Fund,

Any such contract of insurance may be entered into in relation to solicitors F177and incorporated practices generally or in relation to any solicitor or solicitors F177or incorporated practice or practices named therein.

3

No person other than the Society shall have any right of action against a person, body or corporation with whom any such contract of insurance was entered into or have any right to any monies payable under that contract.

Grants

4 C251

Every application for a grant from the Guarantee Fund shall be in such form as may be prescribed by rules made under this Schedule and shall be accompanied, if so required, by the Council by a statutory declaration and the applicant shall produce to the Council such documents and other evidence as they demand.

2

The Council may, as a condition of making a grant out of the Guarantee Fund, require the person to whom the grant is made to assign to the Society at the expense of the Society any rights and remedies competent to him against the solicitor in question, his partner or employee F178or the incorporated practice in question or its employee or any other person in respoect of the loss.

3

A grant from the Guarantee Fund may at the descretion of the Council be paid in one sum or in such instalments as the Council may determine.

C254

The Council may make rules with regard to the procedure to be followed in giving effect to the provisions of this Act relating to the Guarantee Fund, including matters to be prescribed thereunder, and also with respect to any matters incidental, ancilliary or supplemental to those provisions or concerning the administration, management or protection of the Guarantee Fund.

Part II

Power of Council to investigate

C265

1

If under section 38 any person (whether a solicitor or not) having possession or control of any documents mentioned in that section refuses or fails to produce or deliver them immediately on being required by the Council to do so or to cause them to be so produced or delivered, the Council may apply to the Court for an order requiring that person to produce or deliver the documents or to cause them to be produced or delivered to the person appointed at the place fixed by the Council within such time as Court may order.

2

Upon taking possession of any such documents which have been produced or delivered to the Council, the Council shall serve upon the solicitor F181or incorporated practice mentioned in section 38, and every such person, a notice giving particulars and the date on which they took possession.

3

Every requirement made or notice given under section 38 or under this Part of this Schedule shall be in writing under the hand of such person as may be appointed by the Council for the purpose and may be served either personally or by registered letter or by letter sent by recorded delivery service addressed to the last known place of business or residence of the person to whom the requirement is made or notice given.

4

Within 14 days after service of a notice under sub-paragraph (2) the person upon whom such notice has been served may apply to the Court for an order directing the Council to return such documents to the person from whom they were received by the Council or to such other person as the applicant may request and on the hearing of any such application the Court may make the order applied for or such other order as they think fit.

5

If no application is made to the Court under sub-paragraph (4) or if the Court on any such application directs that the documents in question remain in the custody or control of the Council, the Council may make enquiries to ascertain the person to whom they belong and may deal with the documents in accordance with the directions of that person.

C41SCHEDULE 4 Constitution, Procedure and Powers of Tribunal

Sections 50, 52.

Annotations:

Modifications etc. (not altering text)

C41

Sch. 4 applied (with modifications) (1.10.2004) by The Solicitors (Scotland) Act 1980 (Foreign Lawyers and Multi-national Practices) Regulations (S.S.I. 2004/383), {reg. 13}

Part I

Constitution

1

The Tribunal shall consist of—

a

not less than F28410 and not more than F28414 members (in this Part referred to as “solicitor members”) who are solicitors recommended by the Council as representatives of the solicitors’ profession throughout Scotland, and F285appointed by the Lord President;

b

b

at least 1 lay member is present, and

c

the number of solicitor members present exceeds the number of lay members present. F289and

d

there are present not more than 3 solicitor members for every lay member.

6

There shall be paid to the lay members of the Tribunal out of money provided by Parliament such fees and allowances as the Secretary of State may, with the approval of the Minister for the Civil Service, determine.

C40Part II Procedure and Powers of Tribunal

Annotations:

Modifications etc. (not altering text)

C40

Sch. 4 Pt. II (paras. 7–22) applied by Legal Aid (Scotland) Act 1986 (c. 47, SIF 77:2), ss. 31(10), 45, Sch. 4 para. 2

Complaints

C277

The making of a complaint to the Tribunal or the giving of any information in connection with a complaint shall confer qualified privilege.

C288

A complaint made to the Tribunal shall not be withdrawn except with the Tribunal’s leave and subject to such conditions with respect to expenses or otherwise as the Tribunal thinks fit.

F290 C548A

Where a complaint is made to the Tribunal by a person other than—

a

the Council; or

b

b

his partners; or

c

his or their families,

but where they so refrain they shall publish their reasons for so doing.

C3415

A copy of every decision by the Tribunal certified by the clerk shall be sent forthwith by the clerk to the respondent and to the complainer intimating the right of appeal available from that decision under this Act.

16

In the case of a decision by the Tribunal—

a

ordering a solicitor to be struck off the roll; or

b

ordering a solicitor to be suspended from practice; or

c

censuring a solicitor F191or an incorporated practice; or

d

fining a solicitor F191or an incorporated practice, F192or

e

order that the recognition under section 34(1A) of an incorporated practice be revokedF193; or

f

containing a direction under section 53A or an order under section 53C(2); or

g

confirming or varying a determination or direction of the Council on an appeal under section 42A(7); or

h

ordering that an investment business certificate issued to a solicitor, a firm of solicitors or an incorporated practice be—

i

suspended; or

ii

subject to such terms and conditions as they may direct; or

iii

revoked,

on the expiration of the days of appeal F194(if any) without an appeal being lodged or, where an appeal has been lodged, if and as soon as the appeal is withdrawn or a decision by the Court is given in terms of subparagraphs (a) to F195(h) or in the case of a decision of the Tribunal under section 53(6) F196or (6B) which has not been varied or quashed by the Court F191or under section 53(6A) which has not been varied by the court, the clerk of the Tribunal shall immediately send to the Council a copy of the decision of the Tribunal certified by him and a copy of the decision by the Court in any appeal, and the Council shall forthwith give effect to any order as to striking the solicitor off the roll and to any terms and conditions directed by the Tribunal under section 53(5); and in any other case shall cause a note of the effect of the decision to be entered against the name of the solicitor in the roll F197or as revoking the recognition under section 34(1A) of an incorporated practice.

17

The Council shall forthwith intimate any order striking a solicitor off the roll or suspending a solicitor from practice to each sheriff clerk and F198 . . ., to the Principal Clerk of Session, and shall F199, without prejudice to paragraph 14, cause a notice of the operative part of the order to be published in the Edinburgh Gazette F200 . . .

18

The file of orders under this Act striking solicitors off the roll, suspending solicitors from practice, or restoring persons to the roll shall be open for inspection at the office of the Society at any reasonable hour by any person without payment of any fee.

F201 C3518A

Without prejudice to paragraph 18, the Council shall ensure that a copy of every decision published under paragraph 14 is open for inspection at the office of the Society during office hours by any person without payment of any fee.

Expenses

C3619

Subject to the provisions of Part IV, the Tribunal may make in relation to any complaint against a solicitor such order as it thinks fit as to the payment by the complainer or by the respondent of the expenses incurred by the other party and by the Tribunal or a reasonable contribution towards those expenses.

C3720

On the application of the person in whose favour an order for expenses under paragraph 19 is made and on production of a certificate by the clerk of the Tribunal that the days of appeal against the order have expired without an appeal being lodged or, where such an appeal has been lodged, that the appeal has been dismissed or withdrawn, the Court may grant warrant authorising that person to recover those expenses from the person against whom the order was made.

C3821

Such warrant shall have effect for execution and for all other purposes as if it were an extracted decree of court awarded against the person against whom the order of the Tribunal was made.

C3922

The expenses of the Tribunal so far as not otherwise defrayed shall be paid by the Society as part of the expenses of the Society.

F202 Appeals

Annotations:

Amendments (Textual)

F202

Sch. 4 paras. 23–25 added by Solicitors (Scotland) Act 1988 (c. 42, SIF 76:2), s. 6(1), Sch. 1 para. 23(e)

23

The foregoing provisions of Part II of this Schedule shall apply in relation to an appeal to the Tribunal under section 42A(7) or section 53D(1) as they apply in relation to a complaint, but with the following modifications—

a

for references to a complaint there shall be substituted references to an appeal;

b

for references to the respondent there shall be substituted references to the appellant;

c

paragraphs 8A, 9 and 10 shall not apply; and

d

in paragraph 19 the words “against a solicitor” shall be omitted.

24

Subject to Part IV, the Tribunal may dismiss an appeal without holding an inquiry if—

a

they are of the opinion that the appeal is manifestly ill-founded; or

b

the appellant fails to comply with any rule made under section 52.

25

The Tribunal shall give notice of the appeal to the person by whom the original complaint was made (referred to in this Schedule as ’’the complainer’’) and to the Council and shall enquire into the matter, giving the appellant and the complainer reasonable opportunity to make representations to the Tribunal.

F203SCHEDULE 5

Annotations:

Amendments (Textual)

F203

Sch. 5 repealed (15.8.1991) by Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40, SIF 76:2), s. 74(2), Sch. 9; S.I. 1991/1252, art. 4, Sch.2

1

The lay observer shall hold and vacate his office in accordance with the terms of his appointment and shall, on ceasing to hold office, be eligible for re-appointment.

2

The Secretary of State may give general directions to the lay observer about the scope and discharge of his functions, and shall publish any such directions.

3

The Society shall consider any report or recommendation which it receives from the lay observer, and shall notify him of any action which it has taken in consequence.

4

The Secretary of State may appoint staff for the lay observer.

5

Remuneration for the lay observer and his staff and any other expenses of the lay observer shall be paid out of money provided by Parliament.

6

In determining the terms of employment and remuneration of the lay observer and his staff, the number of his staff and any amount payable by way of expenses under paragraph 5, the Secretary of State shall act only with the approval of the Minister for the Civil Service.

7

The Society shall furnish the lay observer with such information as he may from time to time reasonably require.

8

The Secretary of State shall direct the submission to him of an annual report by the lay observer on the discharge of the functions conferred on the lay observer by this Act.

9

The Secretary of State shall lay a copy of any report under paragraph 8 before each House of Parliament.

C5510

In Part III of Schedule 1 to the House of Commons Disqualification Act 1975 (offices disqualifying for membership) there shall be inserted at the appropriate place in alphabetical order the entry “Lay observer appointed under section 49 of the Solicitors (Scotland) Act 1980”.

SCHEDULE 6 Transitional and Savings Provisions

Section 66.

General

1

Insofar as—

any agreement, appointment, operation, authorisation, determination, scheme, instrument, order or regulation made by virtue of an enactment repealed by this Act, or

b

any approval, consent, direction or notice given by virtue of such an enactment, or

c

any complaint made or investigation begun by virtue of such enactment, or

d

any other proceedings begun by virtue of such an enactment, or

e

anything done or having effect as if done,

could, if a corresponding enactment in this Act were in force at the relevant time, have been made, given, begun or done by virtue of the corresponding enactment, it shall, if effective immediately before the corresponding enactment comes into force, continue to have effect thereafter as if made, given, begun or done by virtue of that corresponding enactment.

2

Where—

a

there is any reference in this Act (whether expressed or implied) to a thing done or required or authorised to be done, or a thing omitted, or to an event which has occurred, under or for the purposes of or by reference to or in contravention of this Act, then

b

that reference shall be construed (subject to its context) as including a reference to the corresponding thing, done or required or authorised to be done, or omitted, or to the corresponding events which occurred, as the case may be, under or for the purposes of or by reference to or in contravention of any of the corresponding provisions of the repealed enactments.

2

Where any enactment passed before this Act or any instrument of document refers either expressly or by implication to an enactment repealed by this Act, the reference shall (subject to its context) be construed as or as including a reference to the corresponding provision of this Act.

3

Where any period of time specified in an enactment repealed by this Act is current at the commencment of this Act, this Act has effect as if its corresponding provision has been in force when the period began to run.

Admission of enrolled law agent

4

Notwithstanding the repeal by this Act of section 15 of the Solicitors (Scotland) Act 1933, the Court may grant an application to be admitted as a solicitor to any applicant who was on 28th June 1933 entitled to be admitted as an enrolled law agent according to the regulations for admission then in force under the M6Law Agents (Scotland) Act 1873.

Restriction of grant under Guarantee Fund

5

Notwithstanding the repeal by this Act of section 22(2)(b) of the M7Legal Aid and Solicitors (Scotland) Act 1949, no grant shall be made by the Council under section 43 in respect of a loss which in the opinion of the Council arose before 1st November 1951.

Rights of banks

6

Nothing in section 61(3) shall deprive a bank of any right existing on 1st November 1949.

Admission to societies

7

Notwithstanding the repeal by this Act of sections 44 and 45 of the M8Solicitors (Scotland) Act 1933 any society may—

a

admit a solicitor as a member on such conditions as it thinks fit;

b

accept as a qualification for admission an apprenticeship served under the provisions of this Act with a solicitor who is not a member.

Powers of societies

8

The repeal of Section 35 of the Solicitors (Scotland) Act 1933 is without prejudice to powers of control exercisable by any society over its members, being powers the society were entitled to exercise immediately before 1st March 1934.

In this paragraph and in paragraph 7, “society” means a faculty or society of solicitors in Scotland, incorporated by Royal Charter or otherwise formed in accordance with law, other than the Law Society of Scotland.

Saving for non-qualified person to conduct certain proceedings

9

Nothing in this Act shall affect any enactment empowering any person, not being a person qualified to act as a solicitor, to conduct, defend or otherwise act in relation to any F204action or proceedings in any court.

Register of Law Agents

10

Notwithstanding the repeal by this Act of section 18(1) of the M9Solicitors (Scotland) Act 1933, the Council shall continue to keep in their custody the Register of Law Agents kept under the M10Law Agents (Scotland) Act 1873 and any relative documents transferred to their custody by virtue of section 18(4) of the M11Solicitors (Scotland) Act 1949.

Certificate of admission

11

Notwithstanding the repeal by this Act of section 14 of the M12Solicitors (Scotland) Act 1933, the certificate of admission of a solicitor shall be in writing and signed by a judge of the Court.

C42SCHEDULE 7 Repeals

Section 66.

Annotations:

Modifications etc. (not altering text)

C42

The text of s. 66(2), Sch. 5 para. 10, Sch. 7 is in the form in which it was originally enacted: it was not reproduced in Statutes in Force and, except as specified, does not reflect any amendments or repeals which may have been made prior to 1.2.1991.

Chapter	Short title	Extent of repeal
23 & 24 Geo. 5. c. 21.	The Solicitors (Scotland) Act 1933.	The whole Act.
24 & 25 Geo. 5. c. 45.	The Solicitors Act 1934.	The whole Act.
12 & 13 Geo. 6. c. 63.	The Legal Aid and Solicitors (Scotland) Act 1949.	Part II and Schedules 4 to 7 except section 25(1), (1A), (3), (4), (5).
6 & 7 Eliz. 2. c. 28.	The Solicitors (Scotland) Act 1958.	The whole Act.
1965 c. 29.	The Solicitors (Scotland) Act 1965.	The whole Act.
1976 c. 6.	The Solicitors (Scotland) Act 1976.	The whole Act except section 9.