Regulation of Legal Services (Scotland) Act 2025

Prospective

Conduct complaints suggesting unsatisfactory professional conduct S

9 (1) The 1980 Act is amended as follows.

(2) In section 3A of the 1980 Act (discharge of functions of Council of the Law Society), in subsection (5), in paragraph (aa), for “(6)(2)(a) or 15(5)(a) of that Act” substitute “6(2) of that Act (or treated as having been remitted to them under that section by virtue of section 33A(2) of that Act)”.

(3) In section 42ZA of the 1980 Act (unsatisfactory professional conduct: Council’s powers)—

(a) in subsection (1), in the opening words—

(i) for “6(2)(a) or 15(5)(a) of the 2007 Act” substitute “6(2) of the 2007 Act (or treated as having been remitted to them under that section by virtue of section 33A(2) of that Act)”,

(ii) after “must” insert “(subject to section 47(1A) of the 2007 Act and subsections (1A) and (1B))”,

(b) after subsection (1), insert—

“(1A) Before the Council make a determination under subsection (1)—

(a) the Council may propose a settlement in respect of the complaint which they consider is fair and reasonable in the circumstances to the solicitor and the complainer,

(b) the solicitor may propose a settlement in respect of the complaint to the Council and the complainer.

(1B) If the solicitor accepts the proposal under subsection (1A)(a), or the Council consider that the proposal under subsection (1A)(b) is fair and reasonable in the circumstances, the Council—

(a) must make a direction to that effect, and

(b) may not determine the complaint under subsection (1) unless—

(i) the solicitor has failed to comply with the direction under paragraph (a), or

(ii) the direction is quashed under section 53ZB(2)(d).”,

(c) subsection (2) is repealed,

(d) in subsection (3), in the opening words—

(i) the words “or (2)” are repealed,

(ii) after “complaint” insert “or where the Council makes a direction under subsection (1B)(a)”,

(e) after subsection (3), insert—

“(3A) Where the Council censures a solicitor under subsection (3), the Council may provide that the censure is to have effect for a specified period and must give their reasons for doing so when making an intimation under subsection (8).”,

(f) in subsection (4), after paragraph (c), insert—

“(d) impose conditions on the solicitor’s practising certificate.”,

(g) after subsection (4), insert—

“(4A) Where the Council have imposed conditions on a solicitor’s practising certificate under subsection (4)(d), the Council may provide that the certificate is subject to those conditions for a specified period and must give their reasons for doing so when making an intimation under subsection (8).”,

(h) in subsection (5)—

(i) after “complaint” where it first occurs insert “(including whether to propose a settlement under subsection (1A)(a)) or in considering a proposal under subsection (1A)(b)”,

(ii) the words from “any” to “misconduct” become paragraph (a),

(iii) for “(but” to the end of the subsection substitute ,

(b) any previous decision made under section 47(1A)(a) of the 2007 Act with respect to a complaint against the solicitor,

(c) any previous direction made under subsection (1B)(a) with respect to a complaint against the solicitor,

(d) any previous determination of the Commission of a services complaint under section 9(1) of the 2007 Act relating to the same alleged set of circumstances,

but not a determination, decision or direction in respect of which an appeal is pending or which has been quashed ultimately on appeal.”,

(i) for subsection (7) substitute—

“(7) Any fine imposed under subsection (4)(b) is payable to the Scottish Ministers.”,

(j) in subsection (8)—

(i) in paragraph (a), the words “or (2)” are repealed,

(ii) in paragraph (c), for “(4)” substitute “(1B)(a), (4)(a) or (4)(b)”,

(iii) after paragraph (c), insert—

“(d) any decision to impose conditions on a solicitor’s practising certificate under subsection (4)(d),”,

(iv) in the closing words, after “it” insert “, and to the Commission and any other relevant party,”,

(v) in the closing words, for “or, as the case may be, the direction” substitute “, direction or, as the case may be, the decision”,

(vi) in the closing words, after “determination” where it second occurs insert “or direction under subsection (1B)(a)”,

(k) after subsection (8), insert—

“(8A) An intimation made under subsection (8) must—

(a) be sent as soon as practicable after the determination, direction or decision has been made,

(b) include information about any right of appeal or ability to make a handling complaint by virtue of section 23 of the 2007 Act.”,

(l) in subsection (9)—

(i) in the opening words, for “or (2),” substitute “, a decision to reinstate a discontinued investigation has been made under section 47(1A)(b) of the 2007 Act,”,

(ii) in the opening words, after “direction” where it first occurs insert “or a decision”,

(iii) in the opening words, for “determination or” substitute “determination, decision, or”,

(iv) after paragraph (a) insert—

“(aa) decision,”,

(v) in paragraph (b), for “(whether or not he” substitute “or decision under subsection (4) (whether or not the solicitor”,

(m) in subsection (10), for the words from “a determination” to the end of the subsection substitute —

(a) a determination under subsection (1) not upholding the conduct complaint is intimated to the complainer,

(b) a decision under section 47(1A)(a) of the 2007 Act to discontinue an investigation is intimated to the complainer,

(c) a direction under subsection (1B)(a) is intimated to the complainer,

appeal to the Tribunal against the determination, direction or decision.”.

(4) In section 42ZB—

(a) in subsection (1)(a), for “42ZA(4)” substitute “42ZA(1B)(a) or (4)”,

(b) in subsection (2)—

(i) after “42ZA(9)” insert “or (10)”,

(ii) for “42ZA(4)” substitute “42ZA(1B)(a) or (4)”,

(iii) after subsection (2) insert—

“(3) The Council may, by notice in writing, require an authorised legal business or, as the case may be, a licensed provider that is specified in—

(a) a decision under section 42E(3)(b), or

(b) such a decision as confirmed or varied on appeal by the Tribunal or the Court,

to give, before the expiry of such period being not less than 21 days as the notice specifies, an explanation of the steps which the authorised legal business or the licensed provider has taken to comply with the decision.

(4) Where an appeal is made under section 42E(7) against a decision under section 42E(3)(b), any notice under subsection (3) relating to the decision ceases to have effect pending the outcome of the appeal.

(5) The Council may, by notice in writing, require a solicitor who is specified in—

(a) a direction or order made under section 53ZAA(4), or

(b) such a direction or order as confirmed or varied on appeal by the Court,

to give, before the expiry of such period being not less than 21 days as the notice specifies, an explanation of the steps which the solicitor has taken to comply with the direction or order.

(6) Where an appeal is made under section 54(1A) or (3A) against a decision under section 53ZAA(1) or any direction or order under section 53ZAA(4), any notice under subsection (5) relating to the decision, direction or, as the case may be, order ceases to have effect pending the outcome of the appeal.”,

(c) the title to section 42ZB becomes “Unsatisfactory professional conduct: Council’s powers to monitor compliance”.

(5) Section 42C of the 1980 Act (powers to examine documents and demand explanations in connection with complaints) is repealed.

(6) In section 53 (powers of Tribunal), in subsection (2), after paragraph (g) insert—

“(h) where it considers that a solicitor does not have sufficient competence in relation to any aspect of the law or legal practice, direct the solicitor to undertake such education or training as regards the law or legal practice as it considers appropriate in that respect.”.

(7) Section 53ZA (remission of complaint from Tribunal to Council) is repealed.

(8) After section 53ZA (remission of complaint by Tribunal to Council) insert—

“53ZAA Powers of Tribunal: unsatisfactory professional conduct

(1) Where, after holding an inquiry into a complaint of professional misconduct against a solicitor, the Tribunal is not satisfied that the solicitor has been guilty of professional misconduct, the Tribunal may decide that the solicitor has been guilty of unsatisfactory professional conduct.

(2) Where the Tribunal decides that a solicitor has been guilty of unsatisfactory professional conduct, they—

(a) must censure the solicitor,

(b) may take any of the steps mentioned in subsection (4) which they consider appropriate.

(3) Where the Tribunal censures a solicitor under subsection (2)(a), the Tribunal may provide that the censure is to have effect for a specified period and must give its reasons for doing so when intimating their decision.

(4) The steps are—

(a) where the Tribunal consider that the solicitor does not have sufficient competence in relation to any aspect of the law or legal practice, to direct the solicitor to undertake such education or training as regards the law or legal practice as the Tribunal consider appropriate in that respect,

(b) subject to subsection (8), to direct the solicitor to pay a fine not exceeding £2,000,

(c) to order that the solicitor’s practising certificate is to be subject to such conditions as the Tribunal may direct.

(5) Any fine imposed by the Tribunal under subsection (4)(b) is payable to the Scottish Ministers.

(6) Where the Tribunal has ordered that the solicitor’s practising certificate is to be subject to conditions under subsection (4)(c), the Tribunal may direct that the certificate is to be subject to those conditions for a specified period and must give its reasons for doing so when intimating their decision.

(7) In deciding whether the censure of the solicitor under subsection (2) is to have effect for only a specified period and whether to take any step referred to in that subsection, the Tribunal may take account of—

(a) any previous determination by them, the Council or the Court upholding a complaint against the solicitor of unsatisfactory professional conduct or professional misconduct,

(b) any previous decision made under section 47(1A)(a) of the 2007 Act with respect to a complaint against the solicitor,

(c) any previous direction made under section 42ZA(1B)(a) with respect to a complaint against the solicitor,

but not a determination, decision or direction in respect of which an appeal is pending or which has been quashed ultimately on appeal.

(8) The Tribunal must not direct the solicitor to pay a fine under subsection (4)(b) where, in relation to the subject matter of the complaint, the solicitor has been convicted by any court of an act involving dishonesty and sentenced to a term of imprisonment of not less than two years.

(9) A direction of the Tribunal under this section is 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.

(10) The Scottish Ministers may by regulations amend subsection (4)(b) by substituting for the amount for the time being specified in that subsection such other amount as appears to them to be justified by a change in the value of money.

(11) Regulations under subsection (10) are subject to the negative procedure (see section 28 of the Interpretation and Legislative Reform (Scotland) Act 2010).”.

(9) In section 53ZB (powers of Tribunal on appeal: unsatisfactory professional conduct)—

(a) in the opening words of subsection (1), after “Tribunal” where it first occurs insert “by the solicitor”,

(b) in subsection (1)(a), for “being appealed against” substitute “upholding a conduct complaint”,

(c) in subsection (1)(c), for “being appealed against” substitute “or decision made under section 42ZA(4)”,

(d) after subsection (1)(f), insert—

“(g) may quash or confirm the decision made under section 47(1A)(b) of the 2007 Act (to reinstate a discontinued investigation),

(h) if it confirms the decision, may direct the Council as to which aspects of the complaint should be continued.”,

(e) in the opening words of subsection (2), after “Tribunal” where it first occurs insert “by the complainer”,

(f) in subsection (2)(a), at end insert “, and if it does so—

“(i) must censure the solicitor,

(ii) may, subject to subsection (5), direct the solicitor to pay a fine not exceeding £2,000,

(iii) may order that the solicitor’s practising certificate is to be subject to such conditions as the Tribunal may direct,”,

(g) after subsection (2)(c), insert—

“(d) may quash or confirm the direction made under section 42ZA(1B)(a),

(e) if it quashes the direction—

(i) must quash any censure and any other associated measures accompanying the direction,

(ii) may direct the Council to carry out their duties under section 42ZA(1),

(iii) may direct the Council to propose a new settlement under section 42ZA(1A)(a), taking into account any matters specified by the Tribunal,

(iv) may dismiss the complaint,

(f) may, where it considers that the solicitor does not have sufficient competence in relation to any aspect of the law or legal practice, direct the solicitor to undertake such education or training as regards the law or legal practice as it considers appropriate in that respect,

(g) may quash or confirm the decision made under section 47(1A)(a) of the 2007 Act,

(h) if it quashes the decision, may direct the Council as to which aspects of the complaint should be continued.”,

(h) after subsection (2), insert—

“(2A) Where the Tribunal makes a decision under paragraph (a) of subsection (2), in deciding whether the censure of the solicitor is to have effect for only a specified period and whether to give a direction or make an order mentioned in that paragraph, the Tribunal may take account of—

(a) any previous determination by them, the Council or the Court upholding a complaint against the solicitor of unsatisfactory professional conduct or professional misconduct,

(b) any previous decision made under section 47(1A)(a) of the 2007 Act with respect to a complaint against the solicitor,

(c) any previous direction made under section 42ZA(1B)(a) with respect to a complaint against the solicitor,

but not a determination, decision or direction in respect of which an appeal is pending or which has been quashed ultimately on appeal.

(2B) Where the Tribunal censures a solicitor under subsection (2)(a)(i), the Tribunal may provide that the censure is to have effect for a specified period and must give its reasons for doing so when intimating their decision.

(2C) Where the Tribunal has ordered that the solicitor’s practising certificate is to be subject to conditions under subsection (2)(a)(iii), the Tribunal may direct that the certificate is to be subject to those conditions for a specified period and must give its reasons for doing so when intimating their decision.”,

(i) in subsection (5), after “subsection (1)(e)” insert “or (2)(a)(ii)”,

(j) for subsection (6) substitute—

“(6) Any fine imposed under subsection (1)(e) or (2)(a)(ii) is payable to the Scottish Ministers.”,

(k) after subsection (8) insert—

“(8A) The Scottish Ministers may by regulations amend subsection (2)(a)(ii) by substituting for the amount for the time being specified in that subsection such other amount as appears to them to be justified by a change in the value of money.”,

(l) after subsection (9) insert—

“(9A) Regulations under subsection (8A) are subject to the negative procedure (see section 28 of the Interpretation and Legislative Reform (Scotland) Act 2010).”.

(10) Section 54A (appeals from decisions of Tribunal: unsatisfactory professional conduct) is amended as follows—

(a) in subsection (1)—

(i) after “decision” where it first occurs insert “mentioned in subsection (1A)”,

(ii) the words “under section 53ZB(1), (2), (3) or (4)” are repealed,

(b) after subsection (1), insert—

“(1A) The decision is—

(a) a decision that the solicitor has been guilty of unsatisfactory professional conduct under section 53ZAA(1),

(b) a direction or order made under section 53ZAA(4),

(c) a decision under section 53ZB(1),

(d) a decision under section 53ZB(2)(a), (f), (g) or (h).”,

(c) in subsection (3) the following paragraphs are repealed—

(i) paragraph (b),

(ii) paragraph (c),

(iii) paragraph (d),

(iv) paragraph (f),

(v) paragraph (g),

(d) in subsection (3)—

(i) after paragraph (a), insert—

“(aa) a decision under subsection (1)(b) made in relation to a decision under subsection (1)(a),

(ab) a decision under subsection (1)(h) made in relation to a decision under subsection (1)(g),”,

(ii) after paragraph (g), insert—

“(h) a decision under subsection (2)(g) to confirm a decision made under section 47(1A)(a) of the 2007 Act.”,

(e) after subsection (3) insert—

“(3A) The Council may, before the expiry of the period of 21 days beginning with the day on which a decision by the Tribunal under section 53ZAA(1) is intimated to them, appeal to the Court against—

(a) a decision on whether the solicitor has been guilty of unsatisfactory professional conduct under section 53ZAA(1),

(b) any direction or order made under section 53ZAA(4).”,

(f) in subsection (4), for the words “subsection (1) or (2)” substitute “this section”.

(11) In section 65 (interpretation), in subsection (1), insert after the definition of “the CMA Board”—

• ““conduct complaint” is to be construed in accordance with Part 1 of the 2007 Act,”.

Commencement Information

I1 Sch. 3 para. 9 not in force at Royal Assent, see s. 103(3)