Legalize / United Kingdom / Public General Act

Solicitors (Scotland) Act 1980

Type Public General Act

Publication 1980-08-01

Last updated 2026-03-05

State In force

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

Reform history JSON API

Part I — Organisation

The Law Society of Scotland

Transitional and savings provisions, and repeals.

1

(1) The Law Society of Scotland (referred to in this Act as “the Society”) shall continue to exist and shall exercise the functions conferred upon it by this Act and sections 16 to 23 (which relate to the provision of conveyancing and executry services) of the 1990 Act.

(2) The objects of the Society shall include the promotion of—

(a) the interests of the solicitors’ profession in Scotland; and

(b) the interests of the public in relation to that profession.

(3) The Society may do anything that is incidental or conducive to the exercise of these functions or the attainment of those objects.

(4) Schedule 1 shall have effect in relation to the Society.

Membership of Society

2

(1) Every solicitor having in force a practising certificate shall be a member of the Society.

(2) Notwithstanding any other provisions of this Act, the Council may admit as a member of the Society any solicitor not having in force a practising certificate on such terms and conditions (including the payment by him of a reduced annual subscription) as they may determine.

(3) Subject to subsection (2), a solicitor shall—

(a) be treated as if he were not a member of the Society while suspended from practice as a solicitor under any enactment;

(b) cease to be a member of the Society when his practising certificate ceases to have effect.

The Council of the Law Society

Establishment and functions of Council of Law Society

3

(1) The business of the Society shall continue to be conducted by the Council of the Society (referred to in this Act as “the Council”) the members of which shall be elected , co-opted or appointed in accordance with the provisions of the scheme made under paragraph 2 of Schedule 1.

(2) The Council shall have the functions conferred upon them by this Act and sections 16 to 23 of the 1990 Act.

Part II — Right to Practise as a Solicitor

Qualifications and Training

Qualifications for practising as solicitor

4

No person shall be qualified to practise as a solicitor unless—

(a) he has been admitted as a solicitor; and

(b) his name is on the roll; and

(c) subject to section 24, he has in force a certificate issued by the Council in accordance with the provisions of this Part authorising him to practise as a solicitor (referred to in this Act as a “practising certificate”).

Training regulations

5

(1) The Council may, with the concurrence of the Lord President, make regulations for—

(a) practical training;

(b) attendance at a course of legal education;

(2) Regulations under this section—

(a) may make such incidental, consequential and supplemental provisions as the Council consider necessary or proper in relation to the matters specified in subsection (1);

(b) may include provision for the charging by the Council of fees and the application thereof; and

Admission

Admission as solicitor

6

(1) Subject to the provisions of this section, no person shall be admitted as a solicitor in Scotland unless—

(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) he has satisfied the Council. . .

(i) that he has complied with the provisions of any regulations made under section 5 that apply to him, and

(ii) that he is a fit and proper person to be a solicitor,

and has obtained from the Council a certificate to that effect; and

(c) he has paid such sum in respect of his admission as has been fixed by the Council with the approval of the Lord President.

(2) Where—

(a) a person has complied with the requirements of subsection (1); but

(b) the Council have not lodged a petition for his admission as a solicitor within one month of his having so complied,

he may apply by petition to the court for admission as a solicitor; and if he produces the certificate mentioned in paragraph (b) of subsection (1) the court shall make an order admitting him as a solicitor.

(3) If any person has not obtained from the Council a certificate to the effect mentioned in paragraph (b) of subsection (1) but has otherwise satisfied the requirements of that subsection the Court, on such an application being made by him and on being satisfied after such inquiry as it thinks fit, that—

(a) he is a fit and proper person to be admitted as a solicitor, and

(b) he is competent to be a solicitor,

may make an order admitting him as a solicitor.

(3A) The Council may petition the court for the admission as a solicitor of an applicant who has complied with the requirements of subsection (1) above; and, where it does so it shall lodge the petition not later than one month after the applicant has first so complied.

(3B) The Court shall, on a petition being made to it under subsection (3A) above, make an order admitting the applicant as a solicitor.

(4) Any order admitting a person as a solicitor under this section shall include a direction to the Council to enter the name of that person in the roll.

(5) Nothing in this section affects the operation of the Colonial Solicitors Act 1900 or any Order in Council made under that Act (admission as solicitors in Scotland of solicitors of certain overseas territories)

(6) Every person who has been enrolled as a law agent shall be deemed to be admitted as a solicitor.

The Roll

Keeping the roll

7

(1) The Council shall continue to be the registrar of solicitors and shall keep at the office of their secretary a roll of solicitors (in this Act referred to as “the roll”).

(2) The roll shall consist of the names in alphabetical order of all solicitors entered on it in accordance with section 8.

(2A) The roll is also to record against the name of each enrolled solicitor the address of the place of business of that solicitor (as given under subsection (2) of that section).

(3) Any person may inspect the roll during office hours without payment.

(4) Schedule 2 (powers of Council in relation to roll of solicitors) shall have effect.

Entry in roll

8

(1) On production to the Council of an order under section 6 admitting a person as a solicitor and directing that his name be entered on the roll the Council shall enter the name of that person on the roll.

(2) Any solicitor whose name is entered on the roll (in this Act referred to as “an enrolled solicitor”) shall, on such entrolment, inform the Council in writing of the address of his place of business, and shall on any change of that address, inform them in writing of his new address.

(3) The Council shall issue a certificate of enrolment to any enrolled solicitor who applies for it.

Removal of name from roll on request

9

(1) An enrolled solicitor who wishes his name , or any annotation made against his name under section 25A(3), to be removed from the roll of solicitors may make an application to the Council in that behalf, and the Council shall ... remove the name of that solicitor or, as the case may be, the annotation against his name, from the roll.

(2) But the Council are required to remove the name or annotation only if they are satisfied that—

(a) the solicitor has made adequate arrangements with respect to the business which the solicitor then has in hand, and

(b) it is otherwise appropriate to do so.

Restoration of name to roll on request

10

(1) A solicitor. . . whose name has been struck off the roll other than by order of the Court, shall only be entitled to have his name restored to the roll, if on an application in that behalf made by him to the Tribunal and after such inquiry as the Tribunal thinks proper, the Tribunal so orders.

(1ZA) Where the restoration of a solicitor's name to the roll has been prohibited under section 53(2)(aa), the solicitor is entitled to have the solicitor's name restored to the roll if (but only if) the Tribunal so orders—

(a) on an application made to it by the solicitor, and

(b) after such enquiry as it thinks proper.

(1A) On an application to the Council from a solicitor whose name , or any annotation against whose name, has been removed from the roll under section 9 (except where subsection (1ZA) applies) the Council may, after such inquiry as they think proper, restore the name of that solicitor or, as the case may be, the annotation, to the roll.

(2) Rules made by the Tribunal under section 52 may—

(a) regulate the making, hearing and determining of applications under subsection (1) or (1ZA) ;

(b) provide for payment by the applicant to the Council of such fee in respect of restoration to the roll as the rules may specify.

Directions by Lord President

11

(1) The Lord President may give directions to the Council in relation to the carrying out of their duties in connection with the keeping of the roll and they shall give effect to any such direction.

(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Power of Court to prescribe fees

12

Practising Certificates

Applications for practising certificates

13

(1) Subject to this section and sections 14 to 24, the Council may make rules with respect to—

(a) applications for practising certificates;

(b) the issue of practising certificates;

(2) Any person may inspect the register during office hours without payment.

(3) The making of a false statement by a solicitor in an application for a practising certificate may be treated as professional misconduct by him for the purposes of Part IV, unless he proves the statement was made without intention to deceive.

Issue of practising certificate

14

(1) The Council shall issue to an enrolled solicitor on application being duly made by him, a practising certificate in accordance with rules made by them under section 13.

(2) The Council shall not issue a practsing certificate to a solicitor while he is suspended from practice.

Discretion of Council in special cases

15

(1) In any case where this section has effect, the applicant shall, unless the Council otherwise order, give to the Council, not less than 6 weeks before he applies for a practising certificate, notice of his intention to do so; and the Council may in their discretion—

(a) grant or refuse the application, or

(b) decide to issue a certificate to the applicant subject to such conditions as the Council may think fit.

(2) Subject to subsections (3) and (4), this section shall have effect in any case where a solicitor applies for a practising certificate

(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) not having held a practising certificate in force within the period of 12 months following the date of his admission; or

(d) without having paid in full any fine imposed on him under section 42ZA(4)(b) or Part IV; or

(e) without having paid in full any expenses for which he has been found liable under section 62A or Part IV; or

(f) when, having been suspended from practice, the period of suspension has expired; or

(g) when, having had his name struck off the roll, his name has been restored to the roll; or

(h) after his estate has been sequestrated or he has granted a trust deed for behoof of creditors, whether he has obtained his discharge or not; or

(i) when . . . —

(i) the Council are investigating a conduct complaint remitted to them under section 6(2)(a) or 15(5)(a) of the 2007 Act, his attention has been drawn by the Council to the matter, and he has not replied or has not furnished a reply which would enable the Council to dispose of the matter; or

(ii) after a complaint has been made of delay in the disposal of the business of a client he has not completed that business within such period as the Council may fix as being a reasonable period within which to do so,

and in either case has been notified in writing by the Council accordingly ; or

(j) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) Where a practising certificate free of conditions is issued by the Council under subsection (1) to a solicitor in relation to whom this section has effect by reason of any such circumstances as are mentioned in paragraphs (b), (c), (f), (g) or (h) of subsection (2), this section shall not thereafter have effect in relation to that solicitor by reason of those circumstances.

(4) Where the Council decide to issue a practising certificate subject to conditions, they may, if they think fit, postpone the issue of the certificate pending the hearing and determination of an appeal under section 16.

Appeals from decisions of Council

16

(1) Where an application for a practising certificate is duly made to the Council otherwise than in a case where

(a) section 15 has effect and the Council refuse or neglect to issue a practising certificate, the applicant ;

(b) the Council refuse to recognise a body corporate as being suitable in terms of section 34(1A)(b), the body corporate

may apply to the Court, who may make such order in the matter as it thinks fit.

(2) Where the Council in exercise of the power conferred on them by section 15, refuse to issue a practising certificate, or issue a practising certificate subject to conditions, the applicant may appeal to the Court against that decision within 14 days of being notified of it.

(3) On an appeal to the Court under subsection (2) the Court may—

(a) affirm the decision of the Council, or

(b) direct the Council to issue a practising certificate to the applicant subject to such conditions if any as the Court may think fit; or

Date and expiry of practising certificates

17

(1) Every practising certificate issued in November of any year shall bear the date of 1st November in that year, and every other practising certificate shall bear the date of the day on which it was issued.

(2) Every practising certificate shall have effect from the date it bears under subsection (1).

(3) Subject to subsection (4), every practising certificate shall expire on 31st October next after it is issued.

(4) On the name of any solicitor being struck off the roll or on a solicitor being suspended from practice as a solicitor, any practising certificate for the time being in force of that solicitor shall cease to have effect, but in the case of suspension, if he ceases to be so suspended during the period for which the practising certificate would otherwise have continued in force, the certificate shall thereupon again have effect.

Suspension of practising certificates

18

(1) If—

(a) in pursuance of the Mental Health (Care and Treatment) (Scotland) Act 2003, a solicitor is, by reason of mental disorder, detained in hospital. . .;

(b) a guardian is appointed to a solicitor under the Adults with Incapacity (Scotland) Act 2000 (asp 4);

(d) a solicitor grants a trust deed for behoof of creditors;

(e) a judicial factor is appointed on the estate of the solicitor under section 41;

any practising certificate for the time being in force of that solicitor shall cease to have effect, and he shall be suspended from practice as a solicitor.

(1ZA) The Council may suspend from practice a solicitor who—

(a) has been convicted of an offence involving dishonesty, or

(b) in respect of an offence, has been—

(i) fined an amount equivalent to level 4 on the standard scale or more (whether on summary or solemn conviction), or

(ii) sentenced to imprisonment for a term of 12 months or more.

(1A) If—

(a) an administration or winding up order, or an appointment of a provisional liquidator, liquidator, receiver or judicial factor has been made in relation to the incorporated practice; or

(b) a resolution has been passed for the voluntary winding-up of an incorporated practice (other than a resolution passed solely for the purpose of reconstruction or amalgamation of the incorporated practice with another incorporated practice),

the recognition under section 34(1A) of the incorporated practice shall be thereby revoked.

(2) On the occurrence of any of the circumstances mentioned in. . . subsection (1) or (1ZA) , the solicitor in question shall intimate those circumstances to the Council in writing immediately.

(3) On the occurrence of the cirumstances mentioned in paragraphs (d) or (e) of subsection (1) the trustee or as the case may be the judicial factor shall intimate his appointment to the Council in writing immediately.

(3A) On the occurence of the circumstances mentioned in—

(a) paragraph (a) of subsection (1A), the administrator, provisional liquidator, liquidator, receiver or, as the case may be, judicial factor appointed in relation to the incorporated practice;

(b) paragraph (b) of subsection (1A), the incorporated practice

shall immediately intimate that fact to the Council.

Further provisions relating to suspension of practising certificates

19

(1) The provisions of this section have effect in relation to a practising certificate which has ceased to have effect by virtue of section 18 during the period when that certificate would, but for that section, have continued in force.

(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) A practising certificate which has ceased to have effect by virtue of paragraphs (c) or (d) of section 18(1) shall again have effect on the solicitor being granted his discharge.

(5) A practising certificate which has ceased to have effect by virtue of paragraph (e) of section 18(1) shall again have effect on the judicial factor being granted his discharge.

(5A) Where a solicitor is suspended from practice as a solicitor by virtue of paragraph (a) or (b) of section 18(1), the period of suspension shall, for the purposes of section 15(2)(f), expire on the solicitor ceasing to be detained in hospital or subject to guardianship or, as the case may be, on the curator bonis being discharged.

(5B) A suspension from practice arising by virtue of section 18(1ZA) expires if the grounds for it no longer apply.

(5C) On the occurrence of any of the circumstances mentioned in subsections (4) to (5B), the solicitor concerned must notify the Council in writing (and without delay).

(6) Where a solicitor is suspended from practice as a solicitor by virtue of paragraphs (c), (d) or (e) of section 18(1) or by virtue of section 18(1ZA) , he may at any time apply to the Council to terminate the suspension.

(7) On an application under subsection (6), the Council may either—

(a) grant the application with or without conditions; or

(b) refuse the application

(8) If on an application by a solicitor under subsection (6), the Council refuse the application or grant it subject to conditions, the solicitor may appeal against the decision to the Court, who may—

(a) affirm the decision; or

(b) vary any conditions imposed by the Council; or

Council's duty to supply lists of solicitors holding practising certificates

20

(1) The Council shall send a list of all solicitors holding practising certificates for the practice year then current—

(a) to the Keeper of the Registers of Scotland; . . .

(ab) to the Principal Clerk of Session;

(b) to each sheriff clerk;

as soon as practicable after 1st December in each year.

(2) The Council shall send a list of all solicitors who have rights of audience in—

(a) the Court of Session, to—

(i) the Principal Clerk of Session;

(ii) the Supreme Court;

(iii) the Registrar to the Judicial Committee of the Privy Council;

and

(b) the High Court of Justiciary, to the Principal Clerk of Justiciary,

as soon as practicable after 1st December in each year; and where, by virtue of an order under section 53(2)(ba), . . . or 55(1)(ba) or (bb), a solicitor’s right of audience in any of those courts is suspended or revoked, the Council shall forthwith inform the persons mentioned in this subsection of that fact.

(3) The Council shall notfiy those persons to whom they have sent lists under this section of any changes in those lists.

Consultants to hold practising certificates

21

(1) A consultant shall be treated for the purposes of this Act as a practising solicitor and the provisions relating to practising certificates and, subject to subsection (2), the Guarantee Fund shall apply to him.

(2) The Council may if they think fit exempt a consultant from any of the provisions of section 43 or Schedule 3 (the Guarantee Fund).

(3) In this section “consultant” means any solicitor who

(a) not being in partnership with a solicitor or other solicitors causes or permits his name to be associated with the name of that solicitor or those solicitors or their firm’s name,

(b) not being a director of an incorporated practice, causes or permits his name to be associated with that incorporated practice,

whether he is described as a consultant or adviser or in any other way.

Evidence as to holding of practising certificates

22

(1) Any list purporting to be issued by the Council and to contain the names of solicitors in Scotland who have before 1st December in any year obtained practising certificates for the period of 12 months from 1st November in that year shall, until the contrary is proved, be evidence that the persons named in that list are solicitors holding such certificates.

(2) The absence from any such list of the name of any person shall, until the contrary is proved, be evidence that the person is not qualified to practise as a solicitor under a certificate for the current year, but in the case of any such person an extract from the roll certified as correct by the Council shall be evidence of the facts appearing in the extract.

Offence to practise without practising certificate

23

(1) Any person who practises as a solicitor or in any way holds himself out as entitled by law to practise as a solicitor without having in force a practising certificate shall be guilty of an offence under this Act unless he proves that he acted without receiving or without expectation of any fee, gain or reward, directly or indirectly.

(2) Without prejudice to any proceedings under subsection (1), failure on the part of a solicitor in practice to have in force a practising certificate may be treated as professional misconduct for the purposes of Part IV.

Saving for public officials

24

Nothing in this Act shall require a practising certificate to be taken out by a person who is by law authorised to act as a solicitor to a public department without admission, or by any assistant or officer appointed to act under the direction of any such solicitor.

Rights of Solicitors

Rights of practising

25

Every person qualified to practise as a solicitor in accordance with section 4 may practise as a solicitor in any court in Scotland.

Restriction on rights of practising

Offence for solicitors to act as agents for unqualified persons

26

(1) Any solicitor to whom this subsection applies who or incorporated practice which upon the account or for the profit of any unqualified person—

(a) acts as agent in any action or proceedings in any court, or

(b) permits or suffers his or, as the case may be, its name to be made use of in any way in any such action or proceedings; or

(d) subject to subsection (4), permits or suffers his or, as the case may be, its name to be made use of in the drawing or preparing of any such writ; or

(e) does any other act to enable that person to appear, act or practise in any respect as a solicitor or notary public,

knowing that person not to be a qualified solicitor or notary public, as the case may be, shall be guilty of an offence.

(2) Subsection (1) applies to any solicitor , registered foreign lawyer or registered European lawyer pursuing professional activities within the meaning of the European Communities (Lawyer’s Practice) (Scotland) Regulations 2000, not being a solicitor , registered foreign lawyer or registered European lawyer pursuing professional activities within the meaning of the European Communities (Lawyer’s Practice) (Scotland) Regulations 2000who is employed full-time on a fixed salary by a body corporate or employed by a law centre, a citizens advice body or a charity.

(3) In this section “person” includes a body corporate but “unqualified person” does not include a licensed legal services provider, an incorporated practice , registered foreign lawyer, multi national practice or a registered European lawyer pursuing professional activities within the meaning of the European Communities (Lawyer’s Practice) (Scotland) Regulations 2000.

(4) Subsection (1)(c) and (d) shall not apply in relation to—

(a) writs relating to heritable or moveable property drawn or prepared upon the account of or for the profit of independent qualified conveyancers providing conveyancing services within the meaning of section 23 (interpretation of sections 16 to 22) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990; or

(b) papers to found or oppose an application for a grant of confirmation in favour of executors drawn or prepared upon the account of or for the profit of an executry practitioner or recognised financial institution providing executry services within the meaning of the said section 23.

(5) In this section, any reference to the European Communities (Lawyer's Practice) (Scotland) Regulations 2000 is to those Regulations as they have effect by virtue of the Services of Lawyers and Lawyer's Practice (EU Exit) (Scotland) (Amendment etc.) Regulations 2019.

27

Offence for solicitors who are disqualified to seek employment without informing employer

28

Any person who—

(a) has been struck off the roll; or

(b) suspended from practice as a solicitor ; or

(d) has been suspended from practice as a registered European lawyer; or

(e) has had his registration as a registered foreign lawyer withdrawn; or

(f) has been suspended from practice as a registered foreign lawyer,

and while so disqualified from practice seeks or accepts employment by a solicitor in connection with that solicitors practice or by an incorporated practiceor multi-national practice without previously informing him or, as the case may be, it that he is so disqualified, shall be guilty of an offence.

Restriction on borrowing processes

29

Liability for fees of other solicitor

30

Where a solicitor or an incorporated practice, authorised by and acting for a client employs another solicitor or incorporated practice or a licensed legal services provider he or, as the case may be, it shall (whether or not he or, as the case may be, it discloses the client) be liable to the employed party for that party's fees and outlays, unless at the time of the employment he or, as the case may be, it expressly disclaims any such liability.

Unqualified persons acting as solicitors

Offence for unqualified person to pretend to be solicitor

31

(1) Any . . . person (including a body corporate) who , not having the relevant qualification,either by himself or together with others, wilfully and falsely—

(a) pretends to be a solicitor or notary public; or

(aa) pretends to be a registered European lawyer; or

(ab) pretends to be a registered foreign lawyer; or

(b) takes or uses any name, title, addition or description implying that he is duly qualified to act as a solicitor or a notary public , registered European lawyer or registered foreign lawyer, as the case may be, or recognised by law as so qualified;

shall be guilty of an offence.

(2) Any person (including a body corporate) who either by himself or together with others, wilfully and falsely—

(a) pretends to be an incorporated practice;

(b) takes or uses any name, title, addition or description implying that he is an incorporated practice,

shall be guilty of an offence.

(2A) This section does not apply to an incorporated practice.

(2B) This section does not apply in relation to the taking or using by a licensed legal services provider of a name, title, addition or description if the licensed provider has the Society's written authority for using it.

(2C) For the purpose of subsection (2B), the Council are to make rules which—

(a) set the procedure for getting the Society's authority (and specify the conditions that the Society may impose if it gives that authority),

(b) specify the grounds on which the Society may refuse to give that authority (and require the Society to give reasons in writing if it refuses to give that authority).

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Offence for unqualified person to prepare certain documents

32

(1) Subject to the provisions of this section and regulations 6, 11, 12 and 13 of the European Communities (Lawyer’s Practice) (Scotland) Regulations 2000 as those regulations have effect by virtue of regulation 6 or 7 of the Services of Lawyers and Lawyer's Practice (EU Exit) (Scotland) (Amendment etc.) Regulations 2019, any unqualified person (including a body corporate) who draws or prepares—

(a) any writ relating to heritable or moveable estate; or

(b) any writ relating to any action or proceedings in any court; or

shall be guilty of an offence.

(2) Subsection (1) shall not apply—

(a) to an unqualified person if he proves that he drew or prepared the writ or papers in question without receiving, or without expecting to receive, either directly or indirectly, any fee, gain or reward (other than by way of remuneration paid under a contract of employment); or

(b) to an advocate; or

(d) to any person employed merely to engross any writ or

(e) an incorporated practice ; or

(ea) a licensed legal services provider; ; or

(f) to a member of a body which has made a successful application under section 25 of the 1990 Act but only to the extent to which the member is exercising rights acquired by virtue of section 27 of that Act

(2A) Subsection (1)(a) shall not apply to —

(a) a “conveyancing practitioner” providing conveyancing services within the meaning of section 23 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990.

(b) an approved lay representative within the meaning of section 5F of the Heritable Securities (Scotland) Act 1894 or section 24E of the Conveyancing and Feudal Reform (Scotland) Act 1970 (lay representation in proceedings by creditors for repossession of residential property) while acting in pursuance of the section in question.

(2B) Subsection (1)(b) shall not apply to a person who is, by virtue of an act of sederunt made under section 32 (power of Court of Session to regulate procedure) of the Sheriff Courts (Scotland) Act 1971, permitted to represent —

(a) a party to a summary cause;

(b) a debtor or hirer in proceedings for—

(i) a time order under section 129 of the Consumer Credit Act 1974 (time orders); or

(ii) variation or revocation, under section 130(6) of that Act (variation and revocation of time orders), of a time order made under section 129;

(2C) Subsection (1)(c) shall not apply to an executry practitioner or a recognised financial institution providing executry services within the meaning of section 23 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990.

(3) In this section “writ” does not include—

(a) a will or other testamentary writing;

(b) a documentin re mercatoria, missive or mandate;

(d) a transfer of stock containing no trust or limitation thereof.

(4) For the purposes of this section, “ unqualified person ” includes a registered foreign lawyer.

Unqualified persons not entitled to fees, etc.

33

(1) Subject to the provisions of regulations 12 and 13 of the European Communities (Lawyer’s Practice) (Scotland) Regulations 2000 as those regulations have effect by virtue of regulation 6 or 7 of the Services of Lawyers and Lawyer's Practice (EU Exit) (Scotland) (Amendment etc.) Regulations 2019, no fee, reward, outlay or expenses on account of or in relation to any act or proceeding done or taken by any person who—

(a) acts as a solicitor or as a notary public without being duly qualified so to act; or

(b) not being so qualified, . . . frames or draws any writs to which section 32 applies,

shall be recoverable by any person in any action or matter.

(2) This section does not apply to an incorporated practice or a licensed legal services provider or in relation to writs framed or drawn by a person who is, by virtue of an act of sederunt made under section 32 of the Sheriff Courts (Scotland) Act 1971, permitted to represent a party to a summary cause.

Part III — Professional Practice, Conduct and Discipline of Solicitors

Practice Rules

Rules as to professional practice, conduct and discipline

34

(1) Subject to subsections (2) and (3), the Council may, if they think fit, make rules for regulating in respect of any matter the professional practice, conduct and discipline of solicitors and incorporated practices.

(1A) Rules made under this section may—

(a) provide as to the management and control by—

(i) solicitors holding practicing certificates or their executors;

(ii) other incorporated practices.

of bodies corporate carrying on businesses consisting of the provision of professional services such as are provided by individuals and firms practicing as solicitors being bodies the membership of which is restricted to such solicitors, executors and other incorporated practices;

(b) prescribe the circumstances in which such bodies may be recognised by the Council as being suitable to undertake the provision of any such services;

(c) prescribe the conditions which (subject to any exceptions provided by the rules) must at all times be satisfied by bodies corporate so recognised if they are to remain so recognised (which bodies, when and for so long as so recognised, are in this Act referred to as “incororated practices”;

(d) regulate the conduct of the affairs of incorporated practices; and

(e) provide—

(i) for the manner and form in which applications for recognition under this section are to be made, and for the payment of fees in connection with such applications for recognition under this section are to be made, and for the payment of fees in connection with such applications;

(ii) for regulating the names that may be used by incorporated practices;

(iii) as to the period for which any recognition granted under this section shall (subject to the provisions of this Act) remain in force;

(iv) for the revocation of any such recognition on the grounds that it was granted as a result of any error or fraud;

(v) for the keeping by the Society of a list containing the names and places of business of all incorporated practices and for the information contained in any such list to be available for inspection;

(vi) for rules made under any provision of this Act to have effect in relation to incorporated practices with such additions, omissions or other modifications as appear to the Council to be necessary or expedient;

(vii) for empowering the Council to take such steps as they consider necessary or expedient to ascertain whether or not any rules applicable to incorporated practices by virtue of this section are being complied with; and

(f) make such additional or different provision as the Council think fit in relation to solicitors who have an interest in or are employed by (or otherwise within) licensed legal services providers .

(1B) Rules made under this section may–

(a) prevent a solicitor from entering a multi-national practice without the approval of the Council; and

(b) make different provision for the regulation of solicitors and registered foreign lawyers in a multi-national practice in the following different cases–

(i) where the principal place of business of the practice is outside Scotland and it has a place of business in Scotland;

(ii) where the principal place of business of the practice is in Scotland and it has a place of business outside Scotland;

(iii) where the principal place of business of the practice is in Scotland and it has no place of business outside Scotland.

(1C) For the purposes of subsection (1B)(b), the principal place of business of a multi-national practice shall be determined by the Council who shall take into account factors set out in rules which may be made under this section.

(1D) Rules made under this section may make provision as to—

(a) the way in which solicitors and incorporated practices are to comply with the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017;

(b) the action which the Council may take to enable them to ascertain whether or not such rules are being complied with; and

(c) the recovery from solicitors of fees and other costs incurred by the Council in ascertaining whether or not a solicitor who has failed to comply with such rules has remedied that failure and is complying with the rules.

(2) The Council shall, before making any rules under this section or section 35—

(a) send to each member of the Society a draft of the rules; and

(b) thereafter submit the draft rules to a meeting of the Society; and

(3) Rules made under this section or section 35 shall not have effect unless the Lord President after considering any objections he thinks relevant has approved the rules so made.

(3A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4ZA) If any solicitor fails to comply with any rule made under this section, that failure may be treated as professional misconduct or unsatisfactory professional conduct.

(4A) A certificate purporting to be signed by an officer of the Society and stating that any body corporate is or is not an incorporated practice shall, unless the contrary is proved, be sufficient evidence of that fact.

(4B) Subject to the provisions of this Act, the Secretary of State may, by order made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament, provide for any enactment or instrument passed or made before the commencement of section (1A) above and having effect in relation to solicitors to have effect in relation to incorporated practices with such additions, omissions, or other modifications as appear to him to be necessary or expedient.

(4C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4D) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Accounts rules and fees

Accounts rules

35

(1) The Council shall, subject to section 34(2) and (3), make rules (in this Act referred to as “accounts rules”)—

(a) as to the opening and keeping by solicitors and incorporated practices of accounts and deposits at the banks specified in subsection (2) or with a building society for moneys not belonging to them received by them in the course of their practice;

(b) as to the opening and keeping by solicitors and incorporated practices of—

(i) a deposit or share account with a building society. . . , or

(ii) an account showing sums on loan to a local authority,

being in either case for a client whose name is specified in the title of the account;

(c) as to the keeping by solicitors and incorporated practices of books and accounts containing particulars and information as to money not belonging to them received, held or paid by them in the course of their practice;. . .

(d) as to the action which the Council may take to enable them to ascertain whether or not the rules are being complied with ; and

(e) as to the recovery from solicitors of fees and other costs incurred by the Council in ascertaining whether or not a solicitor who has failed to comply with the accounts rules has remedied that failure and is complying with the rules.

(2) The banks mentioned in paragraph (a) of subsection (1) are—

(a) the Bank of England;

(b) . . .

(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(e) a person (other than a building society) who has permission under Part 4 of the Financial Services and Markets Act 2000 to accept deposits;

(ea) an EEA firm of the kind mentioned in paragraph 5(b) of Schedule 3 to the Financial Services and Markets Act 2000 which has permission under paragraph 15 of that Schedule (as a result of qualifying for authorisation under paragraph 12 of that Schedule) to accept deposits;

(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

and the rules may specify the location of the banks’ or companies’ branches at which the accounts are to be kept.

(2A) Paragraphs (e) and (ea) of subsection (2) must be read with—

(a) section 22 of the Financial Services and Markets Act 2000;

(b) any relevant order under that section; and

(3) If any solicitor fails to comply with any rule made under this section that failure may be treated as professional misconduct or as unsatisfactory professional conduct..

(4) Rules made under this section shall not apply to a solicitor—

(a) who is in employment as solicitor to a Minister of the Crown or a Government Department or as an assistant or officer appointed to act under the direction of such solicitor; or

(b) who is in employment to which Part V of the Legal Aid (Scotland) Act 1986 applies;

(c) who is in employment in an office connected with the administration of a local authority or a statutory undertaking or a designated body to which he has been appointed by the authority or the statutory undertakers or the persons responsible for the management of that body by reason of his being a solicitor,

so far as regards monies received, held or paid by him in the course of that employment.

In this subsection—

“local authority” means a local authority within the meaning of the Local Government (Scotland) Act 1973;

“statutory undertakers” means any persons (including a local authority) authorised by any enactment or statutory order or any scheme made under or confirmed by an enactment to construct, work or carry on any railway, light railway, tramway, road transport, water transport, canal, inland navigation, dock, harbour, pier or lighthouse undertaking or any undertaking for the supply of gas, electricity, hydraulic power or water;

“designated body” means any body whether corporate or unincorporate for the time being designated by the Council for the purposes of this section.

Interest on client's money

36

(1) Accounts rules shall make provision for requiring a solicitor or and incorporated practice, in such cases as may be prescribed by the rules,. . .

(a) to keep in a separate deposit or savings account at a bank or with a building society, or on a separate deposit receipt at a bank, for the benefit of the client money received for or on account of a client; or

(aa) to keep in—

(i) a deposit or share account with a. . . building society; or

(ii) an account showing sums on loan to a local authority,

being in either case an account kept by the solicitor in his or, as the case may be, the incorporated practice in itsown name for a specified client, money so received; or

(b) to make good to the client out of the solicitor’s or, as the case may be, the incorporated practice’s own money a sum equivalent to the interest which would have accrued if the money so received had been kept as mentioned in paragraph (a) or (aa).

(2) The cases in which a solicitor or incorporated practice may be required to act as mentioned in subsection (1) may be defined among other things by reference to the amount of any sum received or balance held or the period for which it is or is likely to be retained or held or both; and the rules may include provision for enabling a client (without prejudice to any other remedy) to require that any question arising under the rules in relation to the client’s money be referred to and determined by the Society.

(3) Except as provided by the rules, a solicitor or incorporated practice shall not be liable by virtue of the relation between solicitor and client to account to any client for interest received by the solicitor or, as the case may be, the incorporated practice on monies lodged in an account at a bank or with a building society, or on deposit receipt, at a bank, being monies received or held for or on account of his or, as the case may be, its clients generally.

(4) Nothing in this section or in the rules shall affect any arrangement in writing whenever made between a solicitor and his client or an incorporated practice and its client as to the application of the client’s money or interest on it.

Accountants' certificates

37

(1) This section shall have effect for the purpose of securing satisfactory evidence of compliance with the accounts rules.

(2) Subject to the following provisions of this section, every solicitor and incorporated practice to whom the accounts rules apply shall, in accordance with the rules made under subsection (3), deliver to the Council a certificate by an accountant (in this section referred to as an “accountant’s certificate”).

(3) The Council shall make rules (in this Act referred to as “accountant’s certificate rules”) prescribing—

(a) the qualifications to be held by an accountant by whom an accountant’s certificate may be given;

(b) the nature and extent of the examination to be made by an accountant of the books and accounts of a solicitor or his firm or of an incorporate practice and of any other relative documents with a view to the signing of an accountant’s certificate;

(c) the intervals at which an accountant’s certificate shall be delivered to the Council, not being more frequent than once in each practice year;

(d) the accounting period for which an accountant’s certificate shall be delivered or the different accounting periods for which in different circumstances an accountant’s certificate shall be delivered;

(e) the period within which an accountant’s certificate shall be delivered; and

(f) the form and content of an accountant’s certificate.

(4) The accountant’s certificate rules may include such other provisions as the Council consider necessary or proper for the purpose of giving effect to the foregoing provisions of this section and for regulating any incidental, consequential or supplementary matters.

(5) The delivery of an accountant’s certificate in pursuance of subsection (2) shall not be required in the case of—

(a) a solicitor who or incorporated practice which, in agreement with the Council, furnishes to the Council and keeps in force a fidelity bond by an insurance office or other institution accepted by the Court as cautioners for a judicial factor appointed by the Court for such amount as the Council may determine, guaranteeing the intromissions of the solicitor or his firm or, as the case may be, of the incorporated practice with money held by him or them or, as the case may be, it for or on behalf of clients; or

(b) a solicitor or incorporated practice who satisfies the Council that during the accounting period to which the accountant’s certificate would ordinarily relate he has not in the course of his practice or, as the case may be, it has not held or received any money on behalf of clients.

(6) If the Council are of the opinion that satisfactory evidence of compliance with the accounts rules for the time being in force will be secured by some method other than by delivery of an accountant’s certificate under subsection (2), they may make rules—

(a) prescribing—

(i) that other method;

(ii) the terms and conditions to be observed in connection therewith; and

(iii) the procedure to be followed by solicitors or incorporated practices desiring to adopt that other method, and

(b) containing such incidental, consequential and supplementary provisions relative thereto as the Council may consider necessary or proper;

and a solicitor who satisfies the Council that he or, as the case may be, an incorporated practice which satisfies the Council that it is complying with rules made under this subsection shall not be required to deliver an accountant’s certificate in pursuance of subsection (2).

(7) A certificate under the hand of the secretary of the Society certifying that a specified solicitor or incorporated practice has or has not, as the case may be, delivered to the Council an accountant’s certificate, or supplied any evidence required from him or, as the case may be, it under this section or under the accountant’s certificate rules or, as the case may be, under any rules made under subsection (6), shall, unless the contrary is proved, be evidence of the fact so certified.

(8) Failure by a solicitor to comply with any provision of this section or of the accountant’s certificate rules or of any rules made under subsection (6), so far as applicable to him, may be treated as professional misconduct or as unsatisfactory professional conduct.

Powers of Council to intervene

Powers where dishonesty alleged

38

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Powers where delay alleged

39

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Powers where failure to comply with accounts rules etc.

40

(1) Where the Council are satisfied, in the case of any solicitor or incorporated practice, after enquiry and after giving the solicitor or, as the case may be, incorporated practice an opportunity of being heard, that the solicitor or, as the case may be, incorporated practicehas failed or is failing to comply with any provisions of—

(za) rules made by virtue of section 34(1D),

(a) section 35 or the accounts rules made under that section, or

(b) section 37 or the accountant’s certificate rules or other rules made under that section,

so far as applicable in his or, as the case may be, its case (in this section referred to as “the applicable provisions”), the Council may, subject to the provisions of this section

(a) withdraw the practising certificate held by the solicitor or, as the case may be—

(b) withdraw the practising certificate or certificates of any or all of the solicitors who are directors of the incorporated practice,

and a certificate so withdrawn shall thereupon cease to have effect and the solicitor shall be suspended from practice as a solicitor.

(2) On being satisfied by the solicitor that he or, as the case may be, by the incorporated practice that it is able and willing to comply with the applicable provisions, the Council, unless they are of opinion that the solicitor or, as the case may be, the incorporated practice is liable to disciplinary proceedings under Part IV, shall terminate the suspension from practice of the solicitor or solicitors concerned and shall restore to him or them any practicing certificate or certificates held by him or them for the practice year then current.

(3) Within 21 days after receiving written notice of a decision of the Council under this section to withdraw his practising certificate, or to refuse to terminate his suspension from practice, the solicitor may appeal to the Court against a decision; and on any such appeal the Court may give such directions in the matter, including directions as to the expenses of the proceedings before the Court, as it may think fit; and the order of the Court shall be final.

(4) Any withdrawal of a solicitor’s practising certificate by the Council in exercise of the power conferred by subsection (1) shall be without prejudice to the operation of section 34(4ZA), section 35(3) or section 37(8).

(5) The Council shall notify the Commission of any case—

(a) where any of the following things occur—

(i) they withdraw a practising certificate under subsection (1);

(ii) they terminate a suspension from practice and restore a practising certificate under subsection (2);

(iii) the Court makes an order under subsection (3); and

(b) which does not involve a complaint remitted to the Council under section 6(2)(a) or 15(5)(a) of the 2007 Act.

Appointment of judicial factor

41

Where the Council, in exercise of any power conferred on them by rules made by virtue of section 34(1D) or the accounts rules, have caused an investigation to be made of the books, accounts and other documents of a solicitor or an incorporated practice, and, on consideration of the report of the investigation, the Council are satisfied—

(a) that the solicitor or, as the case may be, the incorporated practice has failed. . . to comply with the provisions of those rules, and

(b) that, , in the case of a solicitor, in connection with his practice as such, either—

(i) his liabilities exceed his assets in the business, or

(ii) his books, accounts and other documents are in such a condition that it is not reasonably practicable to ascertain definitely whether his liabilities exceed his assets, or

(iii) there is reasonable ground for apprehending that a claim on the Guarantee Fund may arise ; or

(i) its liabilities exceed its assets, or

(ii) its books, accounts and other documents are in such a condition that it is not reasonably practicable to ascertain definitely whether its liabilities exceed its assets, or

(iii) there is reasonable ground for apprehending that a claim on the guarantee fund may arise.

the Council may apply to the Court for the appointment of a judicial factor on the estate of the solicitor or, as the case may be, of the incorporated practice; and the Court, on consideration of the said report and after giving the solicitor or, as the case may be, the incorporated practice an opportunity of being heard, may appoint a judicial factor on such estate, or do otherwise as seems proper to it.

Distribution of sums in client bank account

42

(1) Subject to the provisions of this section, where, in any of the events mentioned in subsection (2) or (2A), the sum at the credit of any client account kept by a solicitor or an incorporated practice (or where several such accounts are kept by him or, as the case may be, by it the total of the sums at the credit of those accounts) is less than the total of the sums received by him in the course of his practice on behalf of his clients or, as the case may be, by it on behalf of its clients and remaining due by him or, as the case may be, by it to them, then, notwithstanding any rule of law to the contrary, the sum at the credit of the client account (or where several such accounts are kept, the total of the sums at the credit of those accounts) shall be divisible proportionately among the clients of the solicitor or, as the case may be, the incorporated practice according to the respective sums received by him in the course of his practice on their behalf or, as the case may be, by it on their behalf and remaining due by him or, as the case may be, by it to them.

(2) The events to which subsection (1) applies are in relation to any solicitor—

(a) the sequestration of his estate;

(b) the granting by him of a trust deed for behoof of creditors;

(2A) The events to which subsection (1) applies are in relation to any incorporated practice—

(a) the making of an administration or winding up order or the appointment of a provisional liquidator, liquidator, receiver or judicial factor; or

(b) the passing of a resolution for voluntary winding-up (other than one passed solely for the purposes of reconstruction or amalgamation with another incorporated practice)

(3) Where a solicitor or an incorporated practice keeps an account at a bank in his or, as the case may be, its own name or, as the case may be, by the incorporated practice in its own name for a specified client no regard shall be had for the purposes of this section to the sum at the credit of that account or to any sums received by the solicitor in the course of his practice on behalf of that client or, as the case may be, by the incorporated practice on that behalf and remaining due by him or, as the case may be, by it to that client, so far as these are represented by the sum at the credit of that bank account ; nor shall any regard be had for such purposes to any—

(a) deposit or share account with a. . . building society; or

(b) account showing sums on loan to a local authority,

being in either case an account kept by the solicitor in his own name or, as the case may be, by the incorporated practice in its own name for a specified client.

(4) For the purposes of this section any reference to an account at a bank includes a reference to a deposit receipt at a bank.

Protection of clients

Guarantee Fund

43

(1) There shall be a fund to be called “The Scottish Solicitors Guarantee Fund” (in this Act referred to as “the Guarantee Fund”, which shall be vested in the Society and shall be under the control and management of the Council.

(2) Subject to the provisions of this section and of Schedule 3 the Guarantee Fund shall be held by the Society for the purpose of making grants in order to compensate persons who in the opinion of the Council suffer pecuniary loss by reason of dishonesty on the part of

(a) any solicitor , registered foreign lawyeror registered European lawyer in practice in the United Kingdom, or any employee of such a solicitor , registered foreign lawyeror registered European lawyer in connection with the practice of the solicitor , registered foreign lawyeror registered European lawyer, whether or not he had a practising certificate in force when the act of dishonesty was committed, and notwithstanding that subsequent to the commission of that act he may have died or had his name removed from or struck off the roll or may have ceased to practise or been suspended from practice ; ...

(aa) any conveyancing or executry practitioner or an employee of the practitioner in connection with the practitioner's practice as such, even if subsequent to the act concerned the practitioner has ceased to provide conveyancing or executry services;

(b) any incorporated practice or any director, member, manager, secretary or other employee of an incorporated practice, notwithstanding that subsequent to the commission of that act it may have ceased to be recognised under section 34(1A) or have been wound up; or

(c) any licensed legal services provider or person within it in connection with its provision of legal services (with the same meaning as for Part 2 of the 2010 Act), even if—

(i) the Society is not its approved regulator, or

(ii) subsequent to the act concerned it has ceased to operate.

(3) No grant may be made under this section—

(a) in respect of a loss made good otherwise;

(b) in respect of a loss which in the opinion of the Council has arisen while the solicitor was suspended from practice;

(c) to a solicitor or his representatives in respect of a loss suffered by him or them in connection with his practice as a solicitor by reason of dishonesty on the part of a partner or employee of his;

(ca) to a conveyancing or executry practitioner in respect of a loss suffered by reason of dishonesty on the part of a partner or employee of the practitioner in connection with the practitioner's practice as such;

(cc) to an incorporated practice or any director or member thereof in respect of a loss suffered by it or him by reason of dishonesty on the part of any director , member , manager, secretary or other employee of the incorporated practice in connection with the practice; . . .

(cd) to a licensed provider or any investor or person who owns, manages or controls or is within the licensed provider in respect of a loss suffered by it or any such person in connection with the licensed provider's provision of legal services by reason of dishonesty on the part of any such persons;

(d) unless an application for a grant is made to the Society in such manner, and within such period after the date on which the loss first came to the knowledge of the applicant, as may be prescribed by rules made under Schedule 3 ; . . .

(e) in respect of any default of a registered European lawyer, or any of his employees or partners, where such act or default takes place outside Scotland, unless the Council is satisfied that the act or default is closely connected with the registered European lawyer’s practice in Scotland.;

(f) in respect of any act or default of a registered foreign lawyer, or any of his employees or partners, where such act or default takes place outside Scotland, unless the Council is satisfied that the act or default is closely connected with the registered foreign lawyer’s practice, or any of his partners' practice, in Scotland; or

(g) in respect of any act or default of any member, director, manager, secretary or other employee of an incorporated practice which is a multi-national practice, where such act or default takes place outside Scotland, unless the Council is satisfied that the act or default is closely connected with the incorporated practice’s practice in Scotland.

(4) The decision of the Council with respect to any application for a grant shall be final.

(5) The Council may refuse to make a grant, or may make a grant only to a limited extent, if they are of opinion that there has been negligence on the part of the applicant or of any person for whom he is responsible which has contributed to the loss in question.

(6) The Council or any committee appointed by them may administer oaths for the purpose of inquiry into any matters which affect the making or refusal of a grant from the Guarantee Fund.

(7) Part I of Schedule 3 shall have effect with respect to the Guarantee Fund, including the making of contributions thereto by solicitors and the administration and management of the Fund by the Council; but nothing in that Schedule shall apply to or in the case of a solicitor—

(a) who is not in practice as a solicitor; or

(b) who is suspended from practice as a solicitor during suspension; or

(c) who is in any such employment as is specified in section 35(4) or in the employment of an incorporated practice or a licensed provider ;

but where any solicitor in any such employment as is mentioned in paragraph (c) engages in private practice as a solicitor, the said Schedule and the other provisions of this Act relating to the Guarantee Fund shall apply to him and in his case so far as regards such private practice.

(8) In the case of licensed providers, this section and Part I of Schedule 3 apply in relation to (and only to) such licensed providers as are regulated by an approved regulator that in furtherance of section 24(4) of the 2010 Act does not maintain its own compensation fund as referred to in that section.

(9) In this section and paragraph 1 of Schedule 3—

“approved regulator”,

“investor”,

are to be construed in accordance with Part 2 of the 2010 Act.

Professional indemnity

44

(1) The Council may make rules with the concurrence of the Lord President concerning indemnity for solicitors and former solicitors and incorporated practices against any class of professional liability, and the rules may for the purpose of providing such indemnity do all or any of the following things, namely—

(a) authorise or require the Society to establish and maintain a fund or funds;

(b) authorise or require the Society to take out and maintain insurance with an authorised insurer;

(c) require solicitors or any specified class of solicitors and incorporated practices or any specified class thereof to take out and maintain insurance with an authorised insurer.

(2) The Society shall have power, without prejudice to any of its other powers, to carry into effect any arrangements which it considers necessary or expedient for the purpose of the rules.

(3) Without prejudice to the generality of subsections (1) and (2) rules made under this section—

(a) may specify the terms and conditions on which indemnity is to be available, and any circumstances in which the right to it is to be excluded or modified;

(b) may provide for the management, administration and protection of any fund maintained by virtue of subsection (1)(a) and require solicitors or any class of solicitors and incorporated practices or any class of incorporated practices to make payments to any such fund;

(c) may require solicitors or any class of solicitors and incorporated practices or any class of incorporated practices to make payments by way of premium on any insurance policy maintained by the Society by virtue of subsection (1)(b);

(d) may prescribe the conditions which an insurance policy must satisfy for the purpose of subsection (1)(c);

(e) may authorise the Society to determine the amount of any payments required by the rules subject to such limits, or in accordance with such provisions, as may be prescribed by the rules;

(f) may specify circumstances in which, where a solicitor or incorporated practice for whom indemnity is provided has failed to comply with the rules, proceedings in respect of sums paid by way of indemnity in connection with a matter in relation to which he or, as the case may be, it has failed to comply may be taken against him or, as the case may be, it by the Society or by insurers;

(g) may specify circumstances in which solicitors and incorporated practices are exempt from the rules;

(h) may empower the Council to take such steps as they consider necessary or expedient to ascertain whether or not the rules are being complied with; and

(i) may contain incidental, procedural or supplementary provisions.

(4) Failure to comply with rules made under this section may be treated as professional misconduct or unsatisfactory professional conduct.

(5) In this section an “authorised insurer” is—

(a) a person who has permission under Part 4 of the Financial Services and Markets Act 2000 to effect or carry out contracts of general liability insurance;

(b) a person who has permission under Part 4 of that Act to effect or carry out contracts of insurance relating to accident, sickness, credit, suretyship, miscellaneous financial loss and legal expenses;

(c) an EEA firm of the kind mentioned in paragraph 5(d) of Schedule 3 to that Act, which has permission under paragraph 15 of that Schedule (as a result of qualifying for authorisation under paragraph 12 of that Schedule) to effect or carry out contracts of general liability insurance; or

(d) an EEA firm of the kind mentioned in paragraph 5(d) of Schedule 3 to that Act, which has permission under paragraph 15 of that Schedule (as a result of qualifying for authorisation under paragraph 12 of that Schedule) to effect or carry out contracts relating to accident, sickness, credit, suretyship, miscellaneous financial loss and legal expenses;

“professional liability” means any civil liability incurred by a solicitor or former solicitor in connection with his practice or in connection with any trust of which he is or formerly was a trustee and, as respects incorporated practices, means any liability incurred by it which if it had been incurred by a solicitor would constitute such civil liability.

(6) The definition of “authorised insurer” in subsection (5) must be read with—

(a) section 22 of the Financial Services and Markets Act 2000;

(b) any relevant order under that section; and

Safeguarding interests of clients of solicitors struck off or suspended

45

(1) The following provisions of this section (except subsection (4A)) shall have effect in relation to the practice of a solicitor whose name is struck off the roll or who is suspended from practice as a solicitor under any provision of this Act and, in relation to any incorporated practice, the recognition under section 34(1A) of which is revoked.

(2) In the case of a solicitor, the solicitor shall within 21 days of the material date satisfy the Council that he has made suitable arrangements for making available to his clients or to some other solicitor or solicitors or incorporated practice instructed by his clients or by himself—

(a) all deeds, 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 sole trustee or co-trustee only with one or more of his partners or 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.

(2A) In the case of an incorporated practice, it shall within 21 days of the material date satisfy the Council that it has made suitable arrangements for making available to its clients or to some other solicitor or solicitors or incorporated practice instructed by its clients or itself—

(a) all deeds, wills, securities, papers, books of accounts, records, vouchers and other documents in its possession or control which are held on behalf of its clients or which relate to any trust of which it is sole trustee or co-trustee only with one or more of its employees; and

(b) all sums of money due from it or held by it on behalf of its clients or subject to any trust as aforesaid.

(3A) If the solicitor or, as the case may be, the incorporated practice fails so to satisfy the Council, the Council may—

(a) require the production or delivery to any person appointed by them at a time and 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 or, as the case may be, the incorporated practice 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 or, as the case may be, the incorporated practice;

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

(4) If the solicitor, immediately before the striking off or, as the case may be, the suspension,was a sole solicitor, the right to operate on, or otherwise deal with, any client account in the name of the solicitor or his firm shall on the occurrence of that event vest in the Society (notwithstanding any enactment or rule of law to the contrary) to the exclusion of any other person.

(4A) Where—

(a) a solicitor is restricted from acting as a principal; and

(b) immediately before the restriction the solicitor was a sole solicitor,

the right to operate on, or otherwise deal with, any client account in the name of the solicitor or the solicitor's firm shall on the occurrence of those circumstances vest in the Society (notwithstanding any enactment or rule of law to the contrary) to the exclusion of any other person until such time as the Council have approved acceptable other arrangements in respect of the client account.

(4B) Part II of Schedule 3 has effect in relation to the powers of the Council under subsection (3A).

(5) In this section—

“material date” means whichever is the latest of—the date when the order of the Tribunal or Court by or in pursuance of which the solicitor is struck off the roll or suspended from practice or, as the case may be, the recognition under section 34(1A) is revoked. is to take effect;the last date on which—an appeal against that order may be lodged or an application may be made to the Court under section 54(2), oran appeal against a decision of the Council under section 40 may be lodged;the date on which any such appeal is dismissed or abandoned; . . .

“principal” means a solicitor who is a sole practitioner or is a partner in a firm of two or more solicitors or is a director of an incorporated practice which is a company or a solicitor who is a member of a multi-national practice having its principal place of business in Scotland;

“sole solicitor” means a solicitor practising under his own name or as a single solicitor under a firm name.

Safeguarding interests of clients in other cases

46

(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,

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,

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

(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.

(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.

Restriction on employing solicitor struck off or suspended

47

(1) Unless he has the written permission of the Council to do so, a solicitor shall not, in connection with his or, as the case may be, its practice as a solicitor, employ or remunerate any person who to his knowledge is disqualified from practising as a solicitor and, unless it has such permission, an incorporated practice shall not by reason of the fact that his name has been struck off the roll or that he is suspended from practice as a solicitor.

(2) Any permission given by the Council for the purposes of subsection (1) may be given for such period and subject to such conditions as the Council think fit.

(3) A solicitor or, as the case may be, incorporated practice aggrieved by the refusal of the Council to grant any such permission as aforesaid, or by any conditions attached by the Council to the grant thereof, may appeal to the Court; and on any such appeal the Court may give such directions in the matter as it thinks fit.

(4) If any solicitor acts in contravention of this section or of any condition subject to which any permission has been given thereunder, his name shall be struck off the roll or he shall be suspended from practice as a solicitor for such period as the Tribunal, or, in the case of an appeal, the Court, may think fit and if any incorporated practice so acts its recognition under section 34(1A) shall be revoked.

Restriction on number of apprentices

48

Part IV — Complaints and Disciplinary Proceedings

Lay Observer

Investigation by lay observer of Society's treatment of complaints

49

The Scottish Solicitors’ Discipline Tribunal

The Tribunal

50

(1) For the purposes of this Part of this Act and sections 16 to 23 (which relate to the provision of conveyancing and executry services) of the 1990 Act there shall be a tribunal, which shall be known as the Scottish Solicitors’ Discipline Tribunal and is in this Act referred to as “the Tribunal”.

(2) Part I of Schedule 4 shall have effect in relation to the constitution of the Tribunal.

Complaints to Tribunal

51

(1) A complaint may be made to the Tribunal by the Council; and, for the purpose of investigating and prosecuting complaints, the Council may appoint a solicitor to act as fiscal.

(1A) In subsection (1) above, without prejudice to the generality of that subsection, the reference to a complaint includes a complaint in respect of conveyancing and executry practitioners and the provision by them of conveyancing and executry services (those expressions having the meanings given in section 23 of the 1990 Act).

(2) The persons mentioned in subsection (3) may report to the Tribunal any case where it appears that . . . an incorporated practice may have failed to comply with any provision of this Act or of rules made under this Act applicable to it. . . , and any such report shall be treated by the Tribunal as a complain under subsection (1).

(2A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) The persons referred to in subsection (2) are—

(a) the Lord Advocate;

(aa) the Advocate General for Scotland

(b) any judge;

(ba) the Dean of the Faculty of Advocates;

(ca) the auditor of the Sheriff Appeal Court,

(d) the Auditor of any sheriff court.

(e) the Scottish Legal Aid Board.

(f) the Scottish legal services ombudsman.

(4) Where a report is made to the Tribunal under subsection (2) the Tribunal may, if it thinks fit, appoint a solicitor to prosecute the complaint and the expenses of the solicitor, so far as not recoverable from the solicitor complained against, shall be paid out of the funds of the Tribunal.

Procedure on complaints to Tribunal

52

(1) Part II of Schedule 4, shall have effect in relation to the procedure and powers of the Tribunal in relation to any complaint or appeal concerning a solicitor or an incorporated practice.

(2) Subject to the other provisions of this Part , the provisions of sections 16 to 23 of the 1990 Act, and of any rules of court made under this Act, the Tribunal, with the concurrence of the Lord President, may make rules—

(a) for regulating the making, hearing and determining of complaints made to it under this Act; and

(aa) for regulating the making, hearing and determining of appeals made to it under section . . . 42ZA(9), (10), (11) or (12), 42ZD(1) or 53D(1);

(ab) for regulating the making, hearing and determining of—

(i) inquiries under subsection (2A) of section 20 of the 1990 Act; and

(ii) appeals under subsection (8A)(b), (11)(b) or (11ZC) of that section.

(iii) appeals under section 20ZB(9), (10), (11) or (12) or 20ZE(1) of that Act;

(b) generally as to the procedure of the Tribunal (including provision for hearings taking place in public or wholly or partly in private).

(3) Rules made by the Tribunal under subsection (2) for regulating the making, hearing or determining of appeals referred to in paragraph (aa) or (ab)(ii) of that subsection may include provision as to persons being entitled, or required by the Tribunal, to appear or be represented at the appeal.

Powers of Tribunal

53

(1) Subject to the other provisions of this Part, the powers exercisable by the Tribunal under subsection (2) shall be exercisable if—

(a) after holding an inquiry into a complaint against a solicitor the Tribunal is satisfied that he has been guilty of professional misconduct, or

(b) a solicitor has (whether before or after enrolment as a solicitor), been convicted by any court of an act involving dishonesty (other than a conviction for an economic crime offence) or has (other than in relation to a conviction for an economic crime offence) been fined an amount equivalent to level 4 on the standard scale or more (whether on summary or solemn conviction) or sentenced to imprisonment for a term of 12 months or more , or

(ba) a solicitor has (whether before or after enrolment as a solicitor) been convicted by any court of an economic crime offence, or

(c) an incorporated practice has been convicted by any court of an offence (other than a conviction for an economic crime offence), which conviction the Tribunal is satisfied renders it unsuitable to continue to be recognised under section 34(1A); or

(ca) an incorporated practice has been convicted by any court of an economic crime offence, which conviction the Tribunal is satisfied renders it unsuitable to continue to be recognised under section 34(1A), or

(d) after holding an inquiry into a complaint, the Tribunal is satisfied that an incorporated practice has failed to comply with any provision of this Act or of rules made under this Act applicable to it.

(2) Subject to subsection (1), the Tribunal may—

(a) order that the name of the solicitor be struck off the roll; ...

(aa) if the solicitor's name has been removed from the roll under section 9, by order prohibit the restoration of the solicitor's name to the roll;

(b) order that the solicitor be suspended from practice as a solicitor for such time as it may determine; ...

(ba) order that any right of audience held by the solicitor by virtue of section 25A be suspended or revoked;

(bb) where the solicitor has been guilty of professional misconduct, and where the Tribunal consider that the complainer has been directly affected by the misconduct, direct the solicitor to pay compensation of such amount, not exceeding £5,000, as the Tribunal may specify to the complainer for loss, inconvenience or distress resulting from the misconduct;

(bc) where—

(i) an incorporated practice has been convicted, or has been found to have failed, as referred to in subsection (1)(c) or (d), and

(ii) the Tribunal consider that the complainer has been directly affected by any misconduct by the practice to which the conviction or failure is (to any extent) attributable,

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Solicitors (Scotland) Act 1980

Part I — Organisation

The Law Society of Scotland

Transitional and savings provisions, and repeals.

1

Membership of Society

2

The Council of the Law Society

Establishment and functions of Council of Law Society

3

Part II — Right to Practise as a Solicitor

Qualifications and Training

Qualifications for practising as solicitor

4

Training regulations

5

Admission

Admission as solicitor

6

The Roll

Keeping the roll

7

Entry in roll

8

Removal of name from roll on request

9

Restoration of name to roll on request

10

Directions by Lord President

11

Power of Court to prescribe fees

12

Practising Certificates

Applications for practising certificates

13

Issue of practising certificate

14

Discretion of Council in special cases

15

Appeals from decisions of Council

16

Date and expiry of practising certificates

17

Suspension of practising certificates

18

Further provisions relating to suspension of practising certificates

19

Council's duty to supply lists of solicitors holding practising certificates

20

Consultants to hold practising certificates

21

Evidence as to holding of practising certificates

22

Offence to practise without practising certificate

23

Saving for public officials

24

Rights of Solicitors

Rights of practising

25

Restriction on rights of practising

Offence for solicitors to act as agents for unqualified persons

26

Offence for solicitors to share fees with unqualified persons

27

Offence for solicitors who are disqualified to seek employment without informing employer

28

Restriction on borrowing processes

29

Liability for fees of other solicitor

30

Unqualified persons acting as solicitors

Offence for unqualified person to pretend to be solicitor

31

Offence for unqualified person to prepare certain documents

32

Unqualified persons not entitled to fees, etc.

33

Part III — Professional Practice, Conduct and Discipline of Solicitors

Practice Rules