Part 4 – Miscellaneous modifications of the 1980 Act etc.
320.This Part makes miscellaneous amendments to the 1980 Act and 1990 Act.
The roll and other registers
321.Paragraph 18 amends the provisions of the 1980 Act relating to the Council’s function of being the registrar of solicitors and the requirement to keep a roll of solicitors at their secretary’s office. The paragraph amends sections 7, 12A, 13, 24A, 60A and paragraphs 18 and 18A of schedule 4 of that Act to require the roll and registers to be available to members of the public, free of charge, by such electronic means as is considered appropriate. Sections 8 and 12B are amended to require enrolled solicitors and registered European lawyers, respectively, to provide contact details to the Council in the first instance and to inform the Council of any changes to these details. Schedule 2 is amended to enable the Council to remove a solicitor’s name from the roll where the solicitor has failed to comply with a training contract, and to enable the Council to contact the solicitor by means other than by writing.
322.Paragraph 19 amends sections 17 and 18 of the 1990 Act to require the registers of conveyancing and executry practitioners to be available to and searchable by members of the public, free of charge, by such electronic means as the Council consider appropriate, and also to enable a conveyancing practitioner who has been removed from the register to have their name restored to it.
Restoration of name to roll and registers: appeals
323.Paragraph 20 amends section 10 and schedule 4 of the 1980 Act. Where the Council decides not to restore a solicitor’s name to the roll, the solicitor may appeal to the Tribunal within 21 days of the intimation of that decision. Where the Tribunal decides not to restore a solicitor’s name to the roll, the solicitor to appeal the decision to the Court of Session. The appeal must be made before the expiry of the period of 21 days beginning with the day on which the Tribunal’s decision is intimated to the solicitor. During the 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 Tribunal relating to expenses.
324.Paragraphs 21 and 22 make a similar amendment for registered European lawyers and registered foreign lawyers.
Restoration of name to roll and registers: expenses
325.Paragraph 23 amends schedule 4 of the 1980 Act to enable the Tribunal to make an order in relation to expenses incurred for an application under sections 10(1), 12D(1) and 60A(4D).
Practising certificates and registration certificates
326.Paragraph 24 amends the 1980 Act in relation to practising certificates. It amends section 15 of the 1980 Act to allow the Council, where it has issued a practising certificate subject to conditions, to vary, remove or impose further conditions. It may do so at the request of the solicitor to whom the practising certificate is issued, or on its own initiative. Before doing so, the Council must notify the solicitor of their intention to do so and give the solicitor 14 days to make representations. The Council must take those representations into account when exercising the power. It also provides that failure of a solicitor to comply with a condition of their practising certificate may be treated as professional misconduct or unsatisfactory professional conduct.
327.Paragraph 24 also inserts new section 15A into the 1980 Act with the effect that, except where section 15 has effect, the Council may vary, remove and impose further conditions on the practising certificate both at the point at which the certificate is issued, or at any other time where the Council consider it necessary to do so in the public interest or for the protection of the public. Section 16 is amended to enable a solicitor to appeal to the Court of Session within 14 days of being notified of the decision to vary, remove or impose conditions on their practising certificate under section 15 or 15A.
328.Paragraph 24 also amends section 18 of the 1980 Act with respect to the suspension of solicitors. The amendment enables the Council to suspend from practice a solicitor if the Council considers it is necessary to do so in the public interest or for the protection of the public. Where it intends to do so in the public interest, the Council must notify the solicitor of its intention and give the solicitor 14 days to make representations (and must take those into account when making its decision).
329.Paragraph 25 makes similar amendment with respect to the registration certificates of registered European lawyers and the suspension of registered European lawyers.
Powers where excessive fees etc. charged
330.Paragraph 26 amends the 1980 Act to enable the Council to, on their own initiative, terminate the suspension of a solicitor where that solicitor was suspended for charging excessive fees. Where it does so, the Council must notify the solicitor of its decision and the reasons for the decision and restore the solicitor’s practising certificate (and may impose conditions on the certificate). In addition to this, when the Council is satisfied that the solicitor or incorporated practice has met certain requirements (i.e. submitting the account and all documents to the Auditor of the Court of Session for taxation and refunding the client), it must terminate the suspension and restore their practising certificate (and may impose conditions on the certificate).
Powers where failure to comply with rules
331.Paragraph 27 amends the 1980 Act to enable the Council to, on their own initiative, terminate the suspension of a solicitor where that solicitor was suspended for failing to comply with accounts rules. Where it does so, the Council must notify the solicitor of its decision and the reasons for the decision and restore the solicitor’s practising certificate (and may impose conditions on the certificate).
332.In addition to this, the Council may terminate the suspension of a solicitor on the basis that they are satisfied that the solicitor (or authorised legal business) is willing and able to comply with the applicable provisions. If it does so, the Council must specify the period within which the solicitor is to comply with those provisions and the solicitor must notify the Council of its compliance. If the solicitor fails to comply within the specified period, the Council may withdraw the practising certificate of the solicitor (or a solicitor who is a member of the authorised legal business) and may suspend the solicitor from practice.
Previous findings of record
333.Paragraph 28 amends the 1980 Act to allow the Law Society to rely on a previous conviction being fact when investigating a disciplinary matter. Where the Council have made a finding based upon a conviction that was subsequently quashed, the person who was convicted may apply to the Council to have the finding revoked.
The Client Protection Fund
334.Paragraph 29 amends the 1980 Act to reflect the change of the name of the Scottish Solicitors’ Guarantee Fund to the “Client Protection Fund”. Paragraphs 30 and 31 make similar amendments to the 2007 Act and 2010 Act, respectively.
Investment business certificates
335.Paragraph 32 amends the 1980 Act to replace references to “an investment business certificate” with “a licence to carry on incidental financial business”. This updates the terminology to reflect current convention and also enables future statutory instruments to update the term.
Appeal from decisions of Tribunal
336.Paragraph 33 contains amendments relating to appeals from decisions of the Tribunal. Sub-paragraph (1) amends section 54 the 1980 Act in consequence of other provisions of the Act. It provides that section 43 of the Act does not apply in relation to an appeal under section 54(1B)(c). Section 43(9) of the Act provides for an appeal by an applicant for authorisation under rules pursuant to section 42, or by an authorised legal business against a relevant authorisation decision, which is defined to mean a decision taken under authorisation rules to refuse an application for authorisation of a legal business, to impose, vary or revoke conditions or restrictions in relation to the authorisation, or to suspend or withdraw an authorisation. The amendment in sub-paragraph (1) disapplies section 43 from section 54 of the 1980 Act because there is already an appeal route for those types of decisions.
337.Sub-paragraphs (3) and (4) amend section 54 of the 1980 Act to enable the Council to appeal (in additional to the existing appeal grounds) a finding by the Tribunal that a solicitor is not guilty of professional misconduct or a decision made under section 53(2), (5) or (5A).
Constitution of Tribunal
338.Paragraph 34 amends schedule 4 of the 1980 Act in relation to the constitution of the Tribunal. It requires the Lord President to consult the Tribunal before appointing members to the Tribunal and requires each solicitor member to have in force a practising certificate when appointed. It also sets out the process for the termination of the appointment of a solicitor member from the Tribunal with the chair of the board being able to request the Lord President terminate the members appointment. It also allows the Chair or the board to appoint a vice chair who can carry out delegated functions.
Procedure of Tribunal
339.Paragraph 35 amends the 1980 Act to allow the Tribunal to arrange for any of their functions to be discharged on their behalf by one of their members other than an excepted function. Examples of an excepted function include a decision under section 53ZAA that a solicitor is guilty of unsatisfactory professional conduct rather than professional misconduct, or any of its appeal functions in relation to complaints suggesting unsatisfactory professional conduct or regulatory complaints.
Communicating and giving effect to Tribunal decisions
340.Paragraph 36 amends the 1980 Act to require a copy of every decision of the Tribunal certified by the clerk to be sent to the Commission. When the Council receives a copy of a decision, the Council must give effect to certain actions in the decision including striking a solicitor off the role, requiring the solicitor to undertake education or training, ordering that the practising certificate of a solicitor be subject to conditions, revoking the recognition of an incorporated practice under section 34(1A) or the withdrawal of (or imposition of conditions in relation to) an authorisation of a legal business.
Appeal against decision of Tribunal to dismiss before enquiry
341.Paragraph 37 amends the 1980 Act to insert new section 54C. That section enables the Council to appeal to the Court of Session against a decision of the Tribunal to dismiss a complaint against a solicitor, an authorised legal business or licensed provider, where the complaint was dismissed before an inquiry was held. The appeal must be made within 21 days of the intimation of the Tribunal’s decision to dismiss the inquiry.
342.Paragraph 24 of schedule 4 of the 1980 Act allows the Tribunal to dismiss an appeal without holding an inquiry if the Tribunal is of the opinion that the appeal is manifestly ill-founded or if the appellant fails to comply with any rule made under section 52 of that Act. The new section 54C allows the appellant to appeal to the Court of Session in circumstances where the appeal is dismissed under paragraph 24. The appeal to the Court must be made within 21 days of the Tribunal’s decision being intimated to the appellant.
Finality of decisions
343.Paragraph 38 amends the 1980 Act to make it clear that a decision of the Court of Session, in relation to certain appeals, is final. These appeals are:
an appeal under section 16(1) in relation to an application for a practising certificate,
an appeal under section 16(2) in relation to a decision of the Council under section 15 to refuse to issue a practising certificate, or to issue it subject to conditions, or to vary, remove or impose conditions on it,
an appeal under section 16(2A) in relation to a decision of the Council under section 15A to vary, remove or impose conditions on a practising certificate,
an appeal under section 19(8) in relation to a decision of the Council to refuse to terminate a suspension of a solicitor or to terminate it subject to conditions,
an appeal under section 24D(1) in relation to an application for a registration certificate,
an appeal under section 24D(2) in relation to a decision of the Council under section 24C to refuse to issue a registration certificate or to issue one subject to conditions, or to vary, remove or impose conditions,
an appeal under section 24D(2A) in relation to a decision of the Council under section 24C(3A) or section 24CA to vary, remove or impose conditions on a registration certificate issued to a registered European lawyer,
an appeal under section 24G(7) in relation to a decision of the Council to refuse to terminate the suspension of a registered European lawyer or to terminate it subject to conditions,
an appeal under section 47(3) or (4) in relation to a decision of the Council to give permission under subsection (1) of that section.
Other modifications
344.Paragraph 39 makes other minor amendments to the 1980 Act.
345.Sub-paragraphs (2) to (7) remove the requirement that certain matters are to be communicated specifically in writing. Those matters pertain to the suspension of a practising certificate or registration certificate.
346.Sub-paragraph (10) amends section 32 (offence for unqualified persons to prepare certain documents) so that the offence, insofar as it concerns an unqualified person who draws or prepares any writ relating to any action or proceedings in any court, does not apply to a person referred to in substituted paragraph (2B)(a) of that section.
347.Sub-paragraph (12) enables a body corporate to appeal to the Court of Session against a decision by the Council to refuse to recognise the body corporate as being suitable in terms of section 34(1A)(b).
348.Sub-paragraph (13) amends section 44 (professional indemnity) to adjust the meaning of an “authorised insurer” so that references to Part 4 of the Financial Services and Markets Act 2002 are substituted with references to Part 4A of that Act. These amendments are required in consequence of the insertion of Part 4A by the Financial Services Act 2012.
349.Sub-paragraph (15) amends section 61A (solicitors’ fees) so that subsection (1) of that section is without prejudice to sections 103(2)(j) and 104(2)(j) of the Courts Reform (Scotland) Act 2014.
350.Sub-paragraph (17) makes provision relating to individual culpability where the offence is committed by an organisation. Where an offence is committed by a “relevant organisation”, new section 63A of the 1980 Act provides that the relevant organisation and, in some cases, a “responsible official” or an individual purporting to act in such capacity in that organisation, are both to be held responsible. It ensures that those running legal entities who are responsible for the decisions leading to an offence can also be prosecuted for it.
351.Sub-paragraph (18) amends section 65 (interpretation) to insert definitions for a “category 1 regulator”, a “category 2 regulator” and “legal services”, with the same meanings as those accordingly provided by section 7 and section 5 of this Act.
See paragraph 114.
