Solicitors (Scotland) Act 1980

46 Safeguarding interests of clients in certain other cases. S

(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,

[F1 the Council may do any of the things mentioned in subsection (3A)].

(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,

[F1 the Council may do any of the things mentioned in subsection (3A)].

[F2 (3A) The things are to—

(a) require the production or delivery to any person appointed by the Council at a time and a place fixed by them of the documents mentioned in subsection (3B);

(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 the solicitor or his firm without the leave of the Court and the Court may make such order.

(3B) The documents are—

(a) all books, accounts, deeds, securities, papers and other documents in the possession or control of the solicitor or his firm;

(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 employees.]

(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.

[F3 (4A) Part II of Schedule 3 has effect in relation to the powers of the Council under subsection (2) or (3).]

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

Textual Amendments

F1 Words in s. 46(2)(3) substituted (23.11.2007) by Legal Profession and Legal Aid (Scotland) Act 2007 (asp 5), ss. 81, 82, Sch. 5 para. 1(16)(a) (with s. 77); S.S.I. 2007/497, art. 2

F2 S. 46(3A)(3B) inserted (23.11.2007) by Legal Profession and Legal Aid (Scotland) Act 2007 (asp 5), ss. 81, 82, Sch. 5 para. 1(16)(b) (with s. 77); S.S.I. 2007/497, art. 2

F3 S. 46(4A) inserted (23.11.2007) by Legal Profession and Legal Aid (Scotland) Act 2007 (asp 5), ss. 81, 82, Sch. 5 para. 1(16)(c) (with s. 77); S.S.I. 2007/497, art. 2