Regulation of Legal Services (Scotland) Act 2025

59 Disclosure of information by practitioners etc. to the Commission and relevant professional organisations

(1) The 2007 Act is amended as follows.

(2) In section 17 (power to examine documents and demand explanations in connection with conduct or services complaints)—

(a) the title of the section becomes “Power to examine documents and demand explanations in connection with complaints”,

(b) after subsection (3), insert—

“(3A) Nothing in a notice under subsection (1) requires a practitioner, a practitioner’s firm or an employing practitioner to provide a document or information that is subject to legal privilege.

(3B) But subsection (3A) does not prevent the disclosure of—

(a) a document or information if consent to the disclosure is given by the client of (as the case may be)—

(i) the practitioner,

(ii) the practitioner’s firm, or

(iii) the employing practitioner, or

(b) a document or information that is the subject of another right of confidentiality (regardless of whether or not the client of the practitioner, practitioner’s firm or employing practitioner consents to the disclosure).

(3C) For the purpose of subsection (3A), a document or information is subject to legal privilege if it constitutes a communication—

(a) between the practitioner, the practitioner’s firm or the employing practitioner and the client of the practitioner, practitioner’s firm or employing practitioner, or

(b) made in connection with, or in contemplation of, legal proceedings and for the purpose of those proceedings,

which would, in legal proceedings, be protected from disclosure by virtue of any rule of law relating to confidentiality of communications.”,

(c) after subsection (6) insert—

“(6A) For the purpose of subsection (3) or (6), references to other documents include references to anything in which information is recorded in any form.”,

(d) after subsection (6A) (inserted by subsection (2)(c)) insert—

“(6B) Subsection (6C) applies where—

(a) the Commission gave notice under subsection (1) in connection with its investigation and determination of a services complaint under section 9 to the practitioner, the practitioner’s firm or the employing practitioner (“the recipient”),

(b) the recipient failed to provide some or all of the documents or information sought in the notice within the time specified in it, and

(c) the Commission is satisfied that the recipient does not have a reasonable excuse for the failure.

(6C) The Commission may proceed to determine the complaint based on the information before it despite the recipient’s failure.

(6D) Before proceeding as mentioned in subsection (6C), the Commission must notify the recipient of the proposal and give the recipient an opportunity to respond within the period specified in the notice (which must be no fewer than 14 days from the date of the notice) to—

(a) provide all of the documents or information sought in the notice given under subsection (1), or

(b) provide a reasonable excuse for the failure to provide some or all of the documents or information sought in that notice within the time specified in that notice.

(6E) Where subsection (6C) applies, in determining the complaint, the Commission may draw such inference from the recipient’s failure as it considers appropriate.”.

(3) In section 37 (obtaining of information from relevant professional organisations), after subsection (2) insert—

“(2A) Subsection (1) does not require the provision of a document or information to the Commission that is subject to legal privilege.

(2B) But subsection (2A) does not prevent the disclosure of—

(a) a document or information if consent to the disclosure is given by the client of (as the case may be)—

(i) the practitioner,

(ii) the practitioner’s firm, or

(iii) the employing practitioner, or

(b) a document or information that is the subject of another right of confidentiality (regardless of whether or not the client of the practitioner, practitioner’s firm or employing practitioner consents to the disclosure).

(2C) For the purpose of subsection (2A), a document or information is subject to legal privilege if it constitutes a communication—

(a) between the practitioner and the practitioner’s client, or

(b) made in connection with, or in contemplation of, legal proceedings and for the purpose of those proceedings,

which would, in legal proceedings, be protected from disclosure by virtue of any rule of law relating to confidentiality of communications.”.

(4) In section 48 (conduct complaints and reviews: power of relevant professional organisations to examine documents and demand explanations)—

(a) after subsection (1) insert—

“(1A) Where a relevant professional organisation gives notice under subsection (1)(a) to a practitioner and the practitioner is an employee of another practitioner, the organisation must give a copy of the notice to the employing practitioner.”,

(b) after subsection (2) insert—

“(2A) Nothing in a notice under subsection (1) requires a practitioner, a practitioner’s firm or an employing practitioner to provide a document or information that is subject to legal privilege.

(2B) But subsection (2A) does not prevent the disclosure of—

(a) a document or information if consent to the disclosure is given by the client of (as the case may be)—

(i) the practitioner,

(ii) the practitioner’s firm, or

(iii) the employing practitioner, or

(b) a document or information that is the subject of another right of confidentiality (regardless of whether or not the client of the practitioner, practitioner’s firm or employing practitioner consents to the disclosure).

(2C) For the purpose of subsection (2A) a document or information is subject to legal privilege if it constitutes a communication—

(a) between the practitioner, the practitioner’s firm or the employing practitioner and the client of the practitioner, practitioner’s firm or employing practitioner, or

(b) made in connection with, or in contemplation of, legal proceedings and for the purpose of those proceedings,

which would, in legal proceedings, be protected from disclosure by virtue of any rule of law relating to confidentiality of communications.”,

(c) after subsection (5) insert—

“(5A) For the purpose of subsection (3) or (5), references to other documents include references to anything in which information is recorded in any form.”,

(d) after subsection (5A) (inserted by this section) insert—

“(5B) Subsection (5C) applies where—

(a) a relevant professional organisation gave notice under subsection (1)(a) to the practitioner, the practitioner’s firm or the employing practitioner (“the recipient”) for the purposes of an investigation into a conduct complaint under section 47 or a regulatory complaint under section 52A,

(b) the recipient failed to provide some or all of the documents or information sought in the notice within the time specified in it, and

(c) the relevant professional organisation is satisfied that the recipient does not have a reasonable excuse for the failure.

(5C) The relevant professional organisation may proceed to determine the complaint based on the information before it despite the recipient’s failure.

(5D) Before proceeding as mentioned in subsection (5C), the relevant professional organisation must notify the recipient in writing of the proposal and give the recipient an opportunity to respond within the period specified in the notice (which must be no fewer than 14 days from the date of the notice) to—

(a) provide all of the documents or information sought in the notice given under subsection (1), or

(b) provide a reasonable excuse for the failure to provide some or all of the documents or information sought in that notice within the time specified in that notice.

(5E) Where subsection (5C) applies, in determining the complaint, the relevant professional organisation may draw such inference from the recipient’s failure as it considers appropriate.”.

(5) After section 48 insert—

“48A Conduct complaints, regulatory complaints and services complaints: power of relevant professional organisations to examine documents and demand explanation before initiating complaint

(1) This section applies where a relevant professional organisation is considering—

(a) making a conduct complaint, services complaint or regulatory complaint referred to in section 2(1) to the Commission against a practitioner,

(b) treating a matter under section 33A(2) as if it were a conduct complaint remitted to it by the Commission under section 6(2), or

(c) treating a matter under section 33B(2) as if it were a regulatory complaint remitted to it by the Commission under section 7A(2).

(2) The relevant professional organisation may give notice in writing in accordance with subsection (5) to—

(a) the practitioner,

(b) the practitioner’s firm, or

(c) the employing practitioner.

(3) Notice under subsection (2) may not be given to, or in relation to, a practitioner who is Crown Counsel or a procurator fiscal (within the meaning of section 307 of the Criminal Procedure (Scotland) Act 1995).

(4) Where a relevant professional organisation gives notice under subsection (2) to a practitioner and the practitioner is an employee of another practitioner, the organisation must give a copy of the notice to the employing practitioner.

(5) A notice under subsection (2) may require—

(a) the production or delivery to any person appointed by the relevant professional organisation, at a time and place specified in the notice, of all documents mentioned in subsection (9) which are in the possession or control of the practitioner, the firm or, as the case may be, the employing practitioner, and which relate to the matters under consideration by the relevant professional organisation in relation to the potential complaint (whether or not they relate also to other matters),

(b) an explanation, within such period being not less than 21 days as the notice specifies, from the practitioner, the firm or, as the case may be, the employing practitioner, regarding the matters under consideration by the relevant professional organisation in relation to the potential complaint.

(6) Nothing in a notice under subsection (2) requires a practitioner, a practitioner’s firm or an employing practitioner to provide a document or information that is subject to legal privilege.

(7) But subsection (6) does not prevent the disclosure of—

(a) a document or information if consent to the disclosure is given by the client of (as the case may be)—

(i) the practitioner,

(ii) the practitioner’s firm, or

(iii) the employing practitioner, or

(b) a document or information that is the subject of another right of confidentiality (regardless of whether or not the client of the practitioner, practitioner’s firm or employing practitioner consents to the disclosure).

(8) For the purpose of subsection (6), a document or information is subject to legal privilege if it constitutes a communication—

(a) between the practitioner, the practitioner’s firm or the employing practitioner and the client of the practitioner, practitioner’s firm or employing practitioner, or

(b) made in connection with, or in contemplation of, legal proceedings and for the purpose of those proceedings,

which would, in legal proceedings, be protected from disclosure by virtue of any rule of law relating to confidentiality of communications.

(9) The documents are—

(a) all books, accounts, deeds, securities, papers and other documents in the possession or control of the practitioner, the firm or, as the case may be, the employing practitioner,

(b) all books, accounts, deeds, securities, papers and other documents relating to any trust of which the practitioner is the sole trustee or a co-trustee only with one or more of the practitioner’s partners or employees or, as the case may be, where the practitioner is an incorporated practice of which the practice or one of its employees is a sole trustee or it is a co-trustee only with one or more of its employees.

(10) For the purpose of subsection (9), references to other documents include references to anything in which information is recorded in any form.

(11) Schedule 4 makes further provision about the powers of a relevant professional organisation under this section.”.