The Solicitors (Scotland) Act 1980 (Foreign Lawyers and Multi-national Practices) Regulations 2004

Explanatory Note

(This note is not part of the Regulations)

These Regulations, which are made under section 2(2) of the European Communities Act 1972, amend and modify the Solicitors (Scotland) Act 1980 (c. 46) (“the 1980 Act”), and other enactments, to allow Scottish solicitors and incorporated practices and lawyers from jurisdictions outside Scotland (“foreign lawyers”) to enter into multi national practices. The Regulations implement for Scotland the commitments on free movement of legal services made by the European Community under the General Agreement on Trade and Services (GATS) (see the Marrakesh Agreement, Annex 1B, European Communities and their Member States – Schedule of Specific Commitments, II 1A(a)). The Marrakesh Agreement, which established GATS, is a Community Treaty for the purposes of section 1(2) of the European Communities Act 1972, by virtue of the European Communities (Definition of Treaties) (The Agreement Establishing the World Trade Organisation) Order 1995 (S.I. 1995/265).

The Regulations supplement the provisions contained in section 60A of the 1980 Act (multi national practices). Regulations 3 to 12 amend that Act so that–

(a) failure on the part of a registered foreign lawyer to have in force a current registration certificate may be treated as professional misconduct (regulation 3);

(b) it shall not be an offence for a solicitor or an incorporated practice to act as an agent for a registered foreign lawyer or a multi national practice (regulation 4);

(c) it shall be an offence for a registered foreign lawyer who is disqualified from practice to seek or accept employment without informing his or her employer (regulation 5);

(d) it shall be an offence for an unqualified person to pretend to be a registered foreign lawyer (regulation 6);

(e) it shall be an offence for a registered foreign lawyer to prepare certain documents relating to heritable or moveable estate, court proceedings or a grant of confirmation in favour of executors (regulation 7);

(f) a registered foreign lawyer will enjoy the same rights of professional privilege from disclosure of communications with clients as are enjoyed by a solicitor (regulation 8);

(g) rules made by the Council of the Law Society of Scotland may require a solicitor to receive approval before entering a multi-national practice and may make different provision for the regulation of solicitors and registered foreign lawyers in a multi-national practice depending on where that multi-national practice has its principal place of business (regulation 9);

(h) the Scottish Solicitors Guarantee Fund applies to registered foreign lawyers (regulations 10 and 12);

(i) section 60A makes additional provision for the registration of foreign lawyers and the issue of registration certificates (regulation 11(a) and (b));

(j) a restriction on the order-making power at section 60A(5) of the 1980 Act is removed to make the power exercisable in relation to an enactment or instrument made or passed after the commencement of that section (regulation 11(c)).

Regulation 13 modifies various provisions of the 1980 Act so that those provisions apply to registered foreign lawyers as they apply to solicitors.

Regulation 14 provides that various rule-making powers in the 1980 Act shall be exercisable in relation to registered foreign lawyers and different categories of incorporated practice.

Regulations 15 and 16 modify certain provisions of the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 and the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 so that they apply to registered foreign lawyers as they apply to solicitors.