Solicitors (Scotland) Act 1980

direct the practice to pay to the complainer compensation (for loss, inconvenience or distress resulting from the misconduct) of such amount not exceeding £5,000 as the Tribunal may specify;

• (c) subject to subsection (3ZA), impose on the solicitor or, as the case may be, the incorporated practice a fine not exceeding £10,000; ...

• (ca) where the Tribunal is proceeding on the ground in subsection (1)(ba) or (1)(ca), or where subsection (2A) or (2B) applies, impose on the solicitor or, as the case may be, the incorporated practice, a fine of any amount;

• (d) censure the solicitor or, as the case may be, the incorporated practice; ...

• (e) impose such fine and censure him or, as the case may be, it...

• (f) order that the recognition under section 34(1A) of the incorporated practice be revoked; or

• (g) order that an investment business certificate issued to a solicitor, a firm of solicitors or an incorporated practice be—

• (i) suspended for such time as they may determine; or

• (ii) subject to such terms and conditions as it may direct; or

• (iii) revoked.

• (2A) This subsection applies where the Tribunal is proceeding on the ground referred to in subsection (1)(a) and—

• (a) the solicitor has, in relation to the subject matter of the Tribunal’s inquiry, been convicted by any court of an economic crime offence, or

• (b) the misconduct referred to in subsection (1)(a) consisted of an act or omission which had the effect of inhibiting the prevention or detection of an economic crime offence.

• (2B) This subsection applies where the Tribunal is proceeding on the ground referred to in subsection (1)(d) and the incorporated practice has—

• (a) in relation to the subject matter of the Tribunal’s inquiry, been convicted by any court of an economic crime offence, or

• (b) failed to comply with a provision or rule as referred to in subsection (1)(d) and—

• (i) the failure consisted of an act or omission which had the effect of inhibiting the prevention or detection of an economic crime offence, or

• (ii) the provision or rule applies only for purposes relating to the prevention or detection of an economic crime offence.

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

• (3ZA) The Tribunal shall not impose a fine under subsection (2)(c)—

• (a) where the Tribunal is proceeding on the ground referred to in subsection (1)(a) and the solicitor, in relation to the subject matter of the Tribunal's inquiry, has been convicted by any court of an act involving dishonesty (not being an economic crime offence) and sentenced to a term of imprisonment of not less than 2 years;

• (b) where the Tribunal is proceeding on the ground referred to in subsection (1)(b) , (1)(ba) or (1)(ca);

• (c) where subsection (2A) or (3A) applies.

• (3A) The powers conferred by subsection (2)(bb) to (e) may be exercised by the Tribunal—

• (a) in relation to a former solicitor, notwithstanding that his name has been struck off the roll or that he has, since the date of the misconduct, conviction or sentence referred to in subsection (1)(a), (b) or (ba), ceased to practise as a solicitor or been suspended from practice;

• (b) in relation to a body corporate which was formerly an incorporated practice, notwithstanding that the body has, since the date of the conviction or failure referred to in subsection (1)(c), (ca) or (d), ceased to be recognised as an incorporated practice by virtue of section 34(1A).

• (3B) The power conferred by subsection (2)(ba) may be exercised by the Tribunal either independently of, or in conjunction with, any other power conferred by that subsection.

• (4) Any fine imposed by the Tribunal under subsection (2) shall be forfeit to Her Majesty.

• (5) Where the Tribunal have exercised the power conferred by subsection (2) to censure, or impose a fine on, a solicitor, or both to censure and impose a fine, the Tribunal may order that the solicitor’s practising certificate shall be subject to such terms and conditions as the Tribunal may direct; and the Council shall give effect to any such order of the Tribunal.

• (6) Where the Tribunal order that the name of a solicitor be struck off the roll, or that the solicitor be suspended from practice as a solicitor or that any right of audience held by the solicitor by virtue of section 25A be suspended or revoked, the Tribunal may direct that the order shall take effect on the date on which it is intimated to the solicitor; and if any such direction is given the order shall take effect accordingly.

• (6A) Where the Tribunal order that the recognition under section 34(1A) of an incorporated practice be revoked, the Tribunal shall direct that the order shall take effect on such date as the Tribunal specifies, being a date not earlier than 60 days after its order is intimated to the incorporated practice, and such an order shall take effect accordingly.

• (6B) Where the Tribunal make an order under subsection (2)(g), they may direct that the order shall take effect on the date on which it is intimated to the solicitor, firm or incorporated practice; and if any such direction is given the order shall take effect accordingly.

• (6C) The Council shall give effect to any order of the Tribunal under subsection (2)(g).

• (7) Where in relation to any such order as is mentioned in subsection (6) ,(6A) or (6B) the Tribunal give a direction under subsection (6) or, as the case may be, subsection (6A)or (6B), and an appeal against the order is taken to the Court under section 54, the order shall continue to have effect pending the determination or abandonment of the appeal unless, on an application under subsection (2) of section 54, the Court, otherwise directs.

• (7A) In subsection (2)(g), section 53D(1) and paragraph 16(h) of Schedule 4, “ investment business certificate ” means a certificate issued by the Council under Rule 2.2 of the Solicitors (Scotland) (Conduct of Investment Business) Practice Rules 1988.

• (7B) A direction of the Tribunal under this section is enforceable in like manner as an extract registered decree arbitral in its favour bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland.

• (7C) The Scottish Ministers may by order made by statutory instrument, after consulting the Council and such groups of persons representing consumer interests as they consider appropriate, amend paragraph (bb) or (bc) of subsection (2) by substituting for the amount for the time being specified in that paragraph such other amount as they consider appropriate.

• (7D) A statutory instrument containing an order under subsection (7C) is not to be made unless a draft of the instrument has been laid before, and approved by resolution of, the Scottish Parliament.

• (8) The Secretary of State may, by order made by statutory instrument subject to annullment in pursuance of a resolution of either House of Parliament, amend —

• (a) paragraph ( c ) of subsection (2) by substituting for the amount for the time being specified in that paragraph such other amount as appears to him to be justified by a change in the value of money.

• (b) the definition of “ investment business certificate ” in subsection (7A) by substituting for the reference to Rule 2.2 of the Solicitors (Scotland) (Conduct of Investment Business) Practice Rules 1988, or such reference replacing that reference as may for the time being be specified in that subsection, a reference to such Practice Rule as may from time to time replace Rule 2.2.

• (9) In subsection (2)(bb) and (bc) , “ complainer ” has the same meaning as in section 42ZA.

• (9A) In this section, an economic crime offence means an economic crime within the meaning given by section 193(1) of the Economic Crime and Corporate Transparency Act 2023.

• (10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Appeals from decisions of Tribunal

54

• (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (1A) A solicitor or an incorporated practice may, before the expiry of the period of 21 days beginning with the day on which any decision by the Tribunal mentioned in subsection (1B) is intimated to him or, as the case may be, it appeal to the Court against the decision.

• (1B) The decision is—

• (a) where the Tribunal was satisfied as mentioned in section 53(1)(a), the finding that the solicitor has been guilty of professional misconduct;

• (b) where the Tribunal was satisfied as mentioned in section 53(1)(d), the finding that the incorporated practice has failed to comply with any provision of this Act or of any rule made under this Act applicable to the practice;

• (c) in any case falling within paragraph (a) or (b), or where the decision was made because of the circumstances mentioned in section 53(1)(b) or (c), any decision under section 53(2) or (5).

• (1C) The Council may, before the expiry of the period of 21 days beginning with the day on which a decision by the Tribunal under section 53(2) or (5) is intimated to them, appeal to the Court against the decision; but the Council may not appeal to the Court against a decision of the Tribunal under section 53(2)(bb) or (bc) .

• (1D) Where the Tribunal has found that a solicitor has been guilty of professional misconduct but has not directed him under section 53(2)(bb) or (bc) to pay compensation, the complainer may, before the expiry of the period of 21 days beginning with the day on which the Tribunal's finding is intimated to him, appeal to the Court against the decision of the Tribunal not to make a direction under that subsection.

• (1E) A complainer to whom the Tribunal has directed a solicitor under section 53(2)(bb) or (bc) to pay compensation may, before the expiry of the period of 21 days beginning with the day on which the direction under that subsection is intimated to him, appeal to the Court against the amount of the compensation directed to be paid.

• (1F) On an appeal under any of subsections (1A) to (1E), the Court may give such directions in the matter as it thinks fit, including directions as to the expenses of the proceedings before the Court and as to any order by the Tribunal relating to expenses.

• (1G) A decision of the Court under subsection (1A), (1B), (1C), (1D), (1E) or (1F) shall be final.

• (2) Where

• (a) the Tribunal has exercised the power conferred by section 53(6) to direct that its decision shall take effect on the date on which it is intimated to the solicitor concerned, the solicitor may, within 21 days of that date, apply to the Court for an order varying or quashing the direction in so far as it relates to the date of taking effect ;

• (b) the Tribunal has ordered the revocation of the recognition under section 34(1A) of an incorporated practice, the incorporated practice may within 21 days of the date when the order is intimated to it apply to the court for an order varying (subject to the limit of 60 days referred to in subsection (6A) of section 53) the direction under that subsection;

• (c) the Tribunal has exercised the power conferred by section 53(6B) to direct that its order shall take effect on the day on which it is intimated to the solicitor, firm of solicitors or incorporated practice concerned, the solicitor, firm of solicitors or incorporated practice may, before the expiry of the period of 21 days beginning with that day, apply to the court for an order varying or quashing the direction in so far as it relates to the day on which the order takes effect;

and on any such application the Court may make the order applied for or such other order with respect to the matter as it thinks fit.

• (2A) In subsections (1D) and (1E), “complainer” has the same meaning as in section 42ZA.

• (2B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (2C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

The Court

Powers of Court

55

• (1) In the case of professional misconduct by any solicitor the Court may—

• (a) cause the name of that solicitor to be struck off the roll; or

• (b) suspend the solicitor from practice as a solicitor for such period as the Court may determine; or

• (ba) suspend the solicitor from exercising any right of audience held by him by virtue of section 25A for such period as the court may determine; or

• (bb) revoke any right of audience so acquired by him; or

• (bc) where the Court considers that the complainer has been directly affected by the misconduct, direct the solicitor to pay compensation of such amount, not exceeding £5,000, as it may specify to the complainer for loss, inconvenience or distress resulting from the misconduct; or

• (c) fine the solicitor an amount not exceeding £10,000; or

• (d) censure him; and in any of those events,

• (e) find him liable in any expenses which may be involved in the proceedings before the Court.

• (2) Subject to subsection (3), a decision of the Court under this section shall be final.

• (3) A solicitor whose name has been struck off the roll in pursuance of an order made by the Court under subsection (1), may apply to the Court for an order directing his name to be restored to the roll and the Court may make such order.

• (3A) A solicitor whose rights of audience under section 25A have been revoked in pursuance of an order made by the court under subsection (1) may apply to the court for an order restoring those rights, and the court may make such order.

• (4) An application under subsection (3) shall be by way of petition and intimation of any such petition shall be made to the Tribunal who shall be entitled to appear and to be heard in respect of the application.

• (5) The Scottish Ministers may by order made by statutory instrument—

• (a) after consulting the Council and such groups of persons representing consumer interests as they consider appropriate, amend paragraph (bc) of subsection (1) by substituting for the amount for the time being specified in that paragraph such other amount as they consider appropriate;

• (b) amend paragraph (c) of subsection (1) by substituting for the amount for the time being specified in that subsection such other amount as appears to them to be justified by a change in the value of money.

• (6) A statutory instrument containing an order under—

• (a) subsection (5)(a) is not to be made unless a draft of the instrument has been laid before, and approved by resolution of, the Scottish Parliament;

• (b) subsection (5)(b) is subject to annulment in pursuance of a resolution of the Scottish Parliament.

• (7) In this section, “complainer” has the same meaning as in section 42ZA.

• (8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Saving for jurisdiction of courts

56

Except as otherwise expressly provided, nothing in this Part shall affect the jurisdiction exercisable by the Court, or by any inferior court, over solicitors.

PART V — Notaries Public

Admission and enrolment of solicitors as notaries public

57

• (1) The offices and functions of—

• (a) the clerk to the admission of notaries public; and

• (b) the keeper of the register of notaries public,

are hereby transferred to the Council.

• (2) Any solicitor qualified to practise in accordance with section 4 may apply to the Court to be admitted as a notary public; and on any such application the Court may so admit the applicant and may direct the Council to register him in the register of notaries public.

• (2A) A petition by the Council under section 6(3A) for the admission of a person as a solicitor may, if the person so requests, include an application for the person’s admission as a notary public; and an order on any such petition admitting that person as a solicitor may admit him as a notary public and direct the Council to register him in the register of notaries public.

• (2B) A petition by a person under section 6(2) for his admission as a solicitor may include an application for his admission as a notary public; and an order on any such petition admitting that person as a solicitor may admit him as a notary public and direct the Council to register him in the register of notaries public.

• (3) It shall not be necessary for any person to find caution on his admission as a notary public.

• (4) The procedure to be followed. . . on any application by a person to be admitted a notary public may be prescribed by rules of court.

• (5) The Council may charge such reasonable fees as they consider appropriate in respect of the admission of any person as a notary public.

Removal from and restoration to register of names of notaries public

58

• (1) In the case of any person who is both a solicitor and a notary public, if his name is struck off the roll of solicitors or is removed from that roll in pursuance of an order under any provision of this Act, the Council shall forthwith strike off or, as the case may be, remove his name from the register of notaries public.

• (2) If the name of any such person, having been struck off or removed from the roll as aforesaid, is subsequently restored thereto in pursuance of an order under any provision of this Act, the Council shall forthwith restore the name to the register of notaries public.

• (3) Where a person who is both a solicitor and a notary public is suspended from practising as a solicitor under this Act the Council shall forthwith remove the person’s name from the register of notaries public.

• (4) If the suspension of such a person as is mentioned in subsection (3) is terminated or otherwise comes to an end the Council shall restore the person’s name to the register.

• (5) Where a person who is a solicitor and a notary public no longer has in force a practising certificate, the Council shall forthwith remove the person's name from the register of notaries public.

• (6) If the person mentioned in subsection (5) becomes qualified to practise as a solicitor in accordance with section 4, the Council shall restore the person's name to the register of notaries public.

Authority of notaries public to administer oaths, etc.

59

• (1) Subject to subsection (2), in any case where the administration of an oath, or the receipt of an affidavit or solemn affirmation, is authorised by or under any enactment, it shall be lawful for the oath to be administered, or, as the case may be, for the affidavit or affirmation to be received, by a notary public.

• (2) Nothing in this section applies to an oath or affirmation relating to any matter or thing relating to the preservation of the peace or to the prosecution, trial or punishment of an offence, or to any proceedings before either House of Parliament or any committee thereof or before the Scottish Parliament or any committee thereof.

• (3) This section is without prejudice to any other statutory provision relating to the administration of oaths by notaries public.

Offence for notaries public to act for unqualified persons

60

PART VI — Miscellaneous And General

Miscellaneous

Protection of banks

61

• (1) Subject to the provisions of this section, no bank or building society shall, in connection with any transaction on any account of a solicitor or an incorporated practice kept with it or with any other bank or building society—

• (a) incur any liability, or

• (b) be under any obligation to make any enquiry, or

• (c) be deemed to have any knowledge of any right of any person to any money paid or credited to the account,

which it would not incur, or be under, or be deemed to have (as the case may be) in the case of an account kept by a person entitled absolutely to all money paid or credited to it; but nothing in this subsection shall relieve a bank or building society from any liability or obligation under which it would be apart from this Act.

• (2) In subsection (1) “account” does not include an account kept by a solicitor or an incorporated practice as trustee for a specified beneficiary.

• (3) Notwithstanding anything in the preceding provisions of this section a bank or building society at which a solicitor or an incorporated practice keeps a special account for clients’ money shall not, in respect of any liability of the solicitor or, as the case may be, the incorporated practice to the bank or building society (not being a liability in connection with that account) have or obtain any recourse or right, whether by way of set-off, counter-claim, charge or otherwise, against money standing to the credit of that account.

Charge for expenses out of property recovered

62

• (1) Where a solicitor has been employed by a client to pursue or defend any action or proceeding, the court before which the action or proceeding has been heard or is depending may declare the solicitor entitled, in respect of the taxed expenses of or in reference to the action or proceeding, to a charge upon, and a right to payment out of, any property (of whatsoever nature, tenure or kind it may be) which has been recovered or preserved on behalf of the client by the solicitor in the action or proceeding; and the court may make such order for the taxation of, and for the raising and payment of, those expenses out of the said property as the court thinks just.

• (2) Where a declaration has been made under subsection (1) any act done or deed granted by the client after the date of the declaration except an act or deed in favour of a bona fide purchaser or lender, shall be absolutely void as against the charge or right.

General

Penalties and time limit for prosecution of offences

63

• (1) Any person guilty of an offence under this Act shall be liable on summary conviction to a fine not exceeding level 4 on the standard scale . . ..

• (2) Notwithstanding any provision of the Criminal Procedure (Scotland) Act 1975, the prosecution of any offence under this Act shall be commenced within 6 months of its first discovery by the prosecutor or in any event within 2 years after the commission of that offence.

• (3) Where an offence under this Act is committed by a body corporate and is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of—

• (a) any director, secretary or other similar officer of the body corporate; or

• (b) any person who was purporting to act in any such capacity,

he (as well as the body corporate) shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly.

• (4) Where an offence under this Act is committed by a partnership or by an unincorporated association (other than a partnership) and is proved to have been committed with the consent or connivance of a partner in the partnership or, as the case may be, a person concerned in the management or control of the association, he (as well as the partnership or association) shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly.

Service of notices etc.

64

Any notice or other document which is required or authorised under this Act to be given to, or served on, any person shall be taken to be duly given or served if it is delivered to him or left at, or sent by post to, his last-known place of business or residence or, in the case of an incorporated practice, it is left at, or delivered or sent by post to, its registered office.

Interpretation

65

• (1) In this Act, except in so far as the context otherwise requires—

• “accounts rules” has the meaning given by section 35;

• “accountant’s certificate rules” has the meaning given by section 37(3);

• “accounts fee” has the meaning given by section 37A(1);

• “advocate” means a member of the Faculty of Advocates;

• “anti-money laundering fee” has the meaning given by section 37A(1);

• “building society” means a building society within the meaning of the Building Societies Act 1986;

• “charity” means a body entered in the Scottish Charity Register,

• “citizens advice body” means an association which is formed (and operates)—otherwise than for the purpose of making a profit, andwith the sole or primary objective of providing legal and other advice (including information) to the public for no fee, gain or reward;

• “client account” means a current or deposit or savings account at a bank or with a building society, or a deposit receipt, at a bank, being an account or, as the case may be, a deposit receipt in the title of which the word “client”, “trustee”, “trust” or other fiduciary term appears, including—an account or deposit receipt for a client whose name is specified in the title of the account on deposit receipt, andan account such as is mentioned in paragraphs (a) and (b) of section 35(1);

• “the Commission” means the Scottish Legal Complaints Commission;

• “the CMA” means the Competition and Markets Authority;

• “the CMA Board” has the same meaning as in Schedule 4 to the Enterprise and Regulatory Reform Act 2013;

• “the Council” has the meaning given by section 3;

• “the Court” means the Court of Session;

• ...

• “foreign lawyer” means a person who is not a solicitor or an advocate but who is a member, and entitled to practise as such, of a legal profession regulated within a jurisdiction outwith Scotland;

• ...

• “functions” includes powers and duties;

• ...

• “incorporated practice” has the meaning given by section 34(1A)(c);

• “judge” includes sheriff;

• “law centre” means a body— established for the purpose of providing legal services to the public generally as well as to individual members of the public; andwhich does not distribute any profits made either to its members or otherwise, but reinvests any such profits for the purposes of the law centre;

• “licensed legal services provider” (or “licensed provider”)” is to be construed in accordance with Part 2 of the 2010 Act;

• ...

• “Lord President” means the Lord President of the Court of Session;

• ...

• “multi-national practice” means— a partnership whose members are solicitors or incorporated practices and registered foreign lawyers; ora body corporate whose members include registered foreign lawyers, and membership of which is restricted to solicitors, incorporated practices, registered foreign lawyers and other multi-national practices;

• “the 1990 Act” means the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40);

• “the 2007 Act” means the Legal Profession and Legal Aid (Scotland) Act 2007 (asp 5);

• “the 2010 Act” means the Legal Services (Scotland) Act 2010;

• “notary public” means a notary public duly admitted in Scotland;

• “practice year” means the year ending on 31st October;

• “practising certificate” has the meaning given by section 4;

• “property” includes property, whether heritable or moveable, and rights and interests in, to or over such property;

• “registered European lawyer” means a person registered with the Society in accordance with regulation 17 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;

• “registered foreign lawyer” means a foreign lawyer who is registered under section 60A;

• “regulatory committee” means the regulatory committee formed in accordance with section 3B(1);

• “the roll” has the meaning given by section 7;

• “the Society” has the meaning given by section 1;

• “Scottish legal services ombudsman” means the ombudsman appointed under section 34 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990;

• “solicitor” means any person enrolled or deemed to have been enrolled as a solicitor in pursuance of this Act;

• “the Tribunal” has the meaning given by section 50;

• “unqualified person” means a person ... who is not qualified under section 4 to act as a solicitor ;

• “unsatisfactory professional conduct” as respects a solicitor has the meaning given (as respects a practitioner who is a solicitor) by section 46 of the 2007 Act.

• (2) Unless the context otherwise requires a reference—

• (a) in any enactment to law agents includes solicitors and registered European lawyers;

• (b) in any enactment to the register of law agents kept in pursuance of the Law Agents (Scotland) Act 1873 includes the roll;

• (c) in any enactment or instrument to the Solicitors Discipline (Scotland) Committee shall be construed as a reference to the Tribunal;

• (d) in any enactment or instrument or other document to the General Council of Solicitors in Scotland shall be construed as a reference to the Council;

• (e) in any enactment to a solicitor’s or registered European lawyer’s being entitled to practise in the Court, or in any other court, or to act in any matter, by reason of his being enrolled in, or of his having subscribed, the list of solicitors practising in that court, shall be construed as a reference to his being entitled so to practise or act be reason of his name being included in the appropriate list provided under section 20.

• (3) In this Act references to any enactment shall, except in so far as the context otherwise requires, be construed as references to that enactment as amended, extended or applied by or under any other enactment, including any enactment contained in this Act.

• (4) In this Act, except in so far as the context otherwise requires,—

• (a) any reference to a numbered Part, section or Schedule is a reference to the Part or Section of, or the Schedule to, this Act so numbered;

• (b) a reference in a section to a numbered subsection is a reference to the subsection of that section so numbered;

• (c) a reference in a section, subsection or Schedule to a numbered or lettered paragraph is a reference to the paragraph of that section, subsection or Schedule so numbered or lettered; and

• (d) a reference to any provision of an Act (including this Act) includes a reference to any Schedule incorporated in the Act by that provision.

• (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Transitional and savings provisions, and repeals

66

• (1) Schedule 6 (Transitional and savings provisions) shall have effect, but the provisions of that Schedule shall not be taken as prejudicing the operation of section 16 of the Interpretation Act 1978 (general savings in respect of repeals).

• (2) The enactments specified in Schedule 7 are hereby repealed to the extent shown in column 3 of that Schedule.

Citation, extent and commencement

67

• (1) This Act may be cited as the Solicitors (Scotland) Act 1980.

• (2) This Act extends to Scotland only.

• (3) This Act shall come into operation on the expiration of one month from the date on which it is passed.

SCHEDULE 1

Constitution and Proceedings

1

The Society shall be a body corporate with a common seal and may sue and be sued in its own name.

2

The Council shall prepare a scheme providing for—

• (a) the constitution... and proceedings of the Council;

• (aa) election, co-option and appointment to the Council;

• (b) the meetings of the Society;

• (c) the appointment of a chairman, vice-chairman, secretary and other officers and employees of the Society;

• (d) the appointment and constitution of committees and sub-committees.

3

The scheme prepared under paragraph 2—

• (a) may make provision enabling the Council to admit as honorary members of the Society persons who have ceased to be practising solicitors, no such honorary member being entitled to vote at meetings of the Society or liable to pay an annual subscription;

• (b) shall make provision for the admission on application made in that behalf and on payment of the annual subscription as a member of the Society of any solicitor who by virtue of the provisions of section 24 is exempted from taking out a practising certificate;

• (bza) shall make provision for—

• (i) the election or co-option of solicitor members to the Council,

• (ii) the appointment of non-solicitor members to the Council;

• (ba) may make provision for persons other than solicitors to be members of a committee or sub-committee of the Council (including provision for such persons to constitute a majority of the members of the committee or sub-committee);

• (c) may contain such other provisions with respect to the administration, management and proceedings of the Society as are considered necessary or proper and are consistent with the provisions of this Act.

4

A scheme prepared under paragraph 2 shall have effect on being approved by a resolution passed by a majority of the members present in person or by proxy at a general meeting of the Society, or at an adjournment of such meeting.

5

The Society may by a resolution passed by a majority consisting of not less than two-thirds of the members of the Society present in person or by proxy at a meeting of the Society of which due notice specifying the intention to propose the resolution has been given, or at any adjournment of such meeting, rescind, add to or amend any of the provisions of the scheme so approved.

Revenue

6

Subject to paragraph 7, every member of the Society shall, for each year, pay to the Society such subscription as may be fixed from time to time by the Society in general meeting.

7

The. . . subscription payable by a solicitor in respect of the year or part thereof in which he is first included in the roll of solicitors and in respect of each of the two years immediately following shall be one half of the amount of the. . . subscription fixed under paragraph 6 (reduced, in the case of a solicitor first included in the roll for only part of a year, in that year proportionately).

8

Except as otherwise provided in this Act, the expenses of the Society shall be defrayed out of the subscriptions and other income received by the Society or the Council and out of other property belonging to the Society.

9

Paragraph 8 does not affect any trust constituted for a special purpose.

Powers

10

The Society may—

• (a) purchase or otherwise acquire land for any of the purposes of this Act;

• (b) sell, lease or otherwise dispose of land so acquired;

• (c) borrow for any of the purposes of this Act in such manner and on such security as they may determine;

• (d) invest any monies not immediately required to meet expenses and other outlays of the Society in any investment in which trustees in Scotland are by law authorised to invest (but nothing in this sub-paragraph prevents the investment of any monies forming any part of any property held in trust for a special purpose in any class of investment authorised by the deed constituting the trust);

• (e) accept any gift of property for the purposes of the Society;

• (f) accept, hold and administer any gift of property or hold as trustees any property for any purpose which the Society consider to be for the benefit of solicitors in Scotland or their dependants or employees or any substantial body of such solicitors or dependants or employees; and

• (g) subject to the provisions of this Act exercise the functions formerly exercised by the General Council of Solicitors in Scotland.

11

The Council may—

• (a) act for and in the name of the Society in any matter other than a matter which in accordance with the provisions of this Schedule is to be determined by the Society in general meeting;

• (b) without prejudice to any other powers they may have, take into consideration and make recommendations or representations with regard to any matters which are in their opinion of importance to solicitors in Scotland

Attestation

12

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

SCHEDULE 2

1

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . the Council (as registrar of solicitors) for the purpose of maintaining the roll as correctly as is reasonably practicable shall have power—

• (a) to remove from the roll the name of any solicitor who has died;

• (b) to send to any solicitor at his address as shown in the roll a letter enquiring whether he wishes to continue to have his name included in the roll and intimating that if no reply is made within the period of 6 months beginning with the date of the posting of the letter his name may be removed from the roll;

• (c) to send any solicitor on the roll who has for at least 3 years been so enrolled in pursuance of regulations made by the Council under section 5 on an undertaking by him to serve a post qualifying year for practical training which the Council are not satisfied that he has implemented, a letter enquiring whether he intends to fufil that undertaking and intimating that unless a reply which the Council regard as satisfactory is received within the period of 6 months beginning with the date of the posting of the letter his named may be removed from the roll; and

• (d) if a reply indicating that he does not wish that his name shall continue to be included in the roll is returned by any solicitor to whom a letter has been so sent, or if no reply or in a case of a letter sent under subparagraph (c) a reply which the Council do not regard as satisfactory is returned within the period mentioned in subparagraph (b) or (c), as the case may be, by any such solicitor, to remove the name of that solicitor from the roll.

2

The Council may, on the application of a solicitor whose name has been removed from the roll in pursuance of paragraph 1(d), and on payment by him to the Council of such reasonable fee in respect of restoration as the Council may fix, order that his name shall be restored to the roll.

3

Any person aggrieved by a decision of the Council under paragraph 2 may appeal against the decision to the Court, and the provisions of section 40(3) shall, subject to any necessary modifications, apply to any such appeal.

SCHEDULE 3

PART I — The Scottish Solicitors Guarantee Fund

Contributions by Solicitors

1

• (1) Subject to the provisions of this Act, there shall be paid to the Society on behalf of the Guarantee Fund by every solicitor in respect of each year during which, or part of which, he is in practice as a solicitor, along with his application for a practising certificate, a contribution (hereafter referred to as an “annual contribution”). . .

• (2) The sum payable by a solicitor in respect of the year in which he first commences to practise after admission and in respect of each of the 2 years immediately following shall be one half of the annual contribution.

• (2A) Sub-paragraphs (1) and (2) do not apply to solicitors who are

• (a) directorsor members of incorporated practices or

• (b) investors in licensed legal services providers.

• (2B) Subject to the provisions of this Act, there shall be paid to the Society on behalf of the Guarantee Fund

• (a) by every incorporated practice in respect of each year during which, or part of which, it is recognised under section 34(1A) a contribution (hereafter referred to as an “ annual corporate contribution ”) in accordance with the relevant scale of annual corporate contributions refered to in sub-paragraph (3)., and

• (b) by every licensed provider, in respect of each year during which or part of which it operates as such under the licence issued by its approved regulator, a contribution (also an “annual corporate contribution”) in accordance with the relevant scale of annual corporate contributions referred to in sub-paragraph (3).

• (3) The Council shall not later than 30 September in each year fix the amount, if any, of the annual contribution to be paid in respect of the following year and the scales of the annual corporate contributions to be so paid....

• (3A) The scales of annual corporate contributions—

• (a) are to be fixed under sub-paragraph (3) by reference to all relevant factors, including—

• (i) in the case of incorporated practices, the number of solicitors that they have as directors, members or employees,

• (ii) in the case of licensed providers, the number of solicitors that they have as investors or employees,

• (b) may otherwise make different provision as between incorporated practices and licensed providers.

• (4) No annual contribution shall be payable by a solicitor and no annual corporate contribution by an incorporated practice or a licensed provider so long as the amount of the Guarantee Fund including the value of all investments forming part of the Fund and after providing for all outstanding liabilities, is in the opinion of the Council not less than £250,000 or such other sum as the Council may from time to time determine.

• (5) If at any time the Council are of the opinion that the liabilities of the Guarantee Fund render it expedient in order to secure the financial stability of the Fund, the Council may, by resolution of which not less than 10 days’ previous notice in writing has been given to each member of the Council impose upon every solicitor a contribution (hereafter referred to as a “special contribution”) of the amount specified in the resolution, and upon every incorporated practice and licensed provider a contribution (hereafter referred to as a “special corporate contribution”) in accordance with a scale of such contributions fixed by the Council as under sub-paragraph (3), and a special or special corporate contribution shall be payable to the Society in one sum or, if the Council so determine, by instalments on or before such date or dates as may be specified in the resolution.

• (6) No special contribution shall be payable by a solicitor in the year in which he first commences to practise after admission nor in either of the 2 years immediately following.

• (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (8) No annual contribution and no special contribution shall be payable by any solicitor who is in the employment of another solicitor or of a firm of solicitors or of an incorporated practice or a licensed provider and who does not engage in practice as a solicitor on his own account.

• (9) Without prejudice to any other method of recovering contributions payable to the Society under this Schedule whether annual or special a practising certificate shall not be issued to a solicitor except on production of evidence of payment of the contributions (if any) due by him to the Fund on or before the issue of the certificate.

• (10) In this schedule the expression “year” means the period of 12 months commencing on 1 November or such other day as may be fixed by the Council.

Investment etc.

2

• (1) Monies not immediately required to meet sums payable out of the Guarantee Fund may be invested by the Society in any investments in which trustees in Scotland are by law authorised to invest.

• (2) The Society may borrow money for the purposes of the Guarantee Fund in such manner and on such security as they may determine but the total sum due at any time in respect of any such loans shall not exceed £1,250,000.

• (3) The accounts of the Guarantee Fund shall be made up annually for the year ending 31 October or on such other day as may be fixed by the Council and shall be audited by an auditor appointed by the Society.

• (4) As soon as the audit is completed the audited accounts and the auditor’s report on the accounts shall be submitted to the Council and a copy of the audited accounts and the auditor’s report shall be sent to the Lord Advocate and to every solicitor who is contributing to the Fund.

• (5) All investments and other monies forming part of the Guarantee Fund and the books and accounts relating to that Fund shall be kept separate from the other investments and monies, books and accounts of the Society, and the investments and other monies forming part of the Guarantee Fund shall not be liable for any obligations, debts or liabilities incurred by the Society or the Council in relation to any business of the Society other than the business of the Guarantee Fund, nor shall the investments and other monies of the Society held for the purposes other than those relating to the Guarantee Fund be liable for any obligations, debts or liabilities incurred by the Society or the Council in relation to the Guarantee Fund.

Insurance

3

• (1) The society may enter into a contract of insurance with any person, body of persons or corporation authorised by law to carry on insurance business for guaranteeing the sufficiency of the Guarantee Fund or for any other purpose in relation to the Fund.

• (2) Any such contract of insurance may be entered into in relation to solicitors , incorporated practices and licensed providers generally or in relation to any solicitor or solicitors , incorporated practice or practices or licensed provider or providers named therein.

• (3) No person other than the Society shall have any right of action against a person, body or corporation with whom any such contract of insurance was entered into or have any right to any monies payable under that contract.

Grants

4

• (1) Every application for a grant from the Guarantee Fund shall be in such form as may be prescribed by rules made under this Schedule and shall be accompanied, if so required, by the Council by a statutory declaration and the applicant shall produce to the Council such documents and other evidence as they demand.

• (2) The Council may, as a condition of making a grant out of the Guarantee Fund, require the person to whom the grant is made to assign to the Society at the expense of the Society any rights and remedies competent to him against the solicitor in question, his partner or employee or the incorporated practice in question or its employee or any other person in respoect of the loss.

• (3) A grant from the Guarantee Fund may at the descretion of the Council be paid in one sum or in such instalments as the Council may determine.

• (3A) The amount of an individual grant from the Guarantee Fund may not exceed £1.25 million.

• (4) The Council may make rules with regard to the procedure to be followed in giving effect to the provisions of this Act relating to the Guarantee Fund, including matters to be prescribed thereunder, and also with respect to any matters incidental, ancilliary or supplemental to those provisions or concerning the administration, management or protection of the Guarantee Fund.

Part II

Power of Council to investigate

5

• (1) The Scottish Ministers may by regulations amend the sum specified in paragraph 4(3A).

• (2) Before making regulations under sub-paragraph (1), the Scottish Ministers must consult the Council (and take account of sections 4 and 5 of the 2010 Act).

• (3) The power to make regulations under sub-paragraph (1) is exercisable by statutory instrument; but a statutory instrument containing any such regulations is not to be made unless a draft of the instrument has been laid before, and approved by resolution of, the Scottish Parliament.

SCHEDULE 4

Part I

Constitution

1

The Tribunal shall consist of not more than 28 members.

2

Each member of the Tribunal shall retire from office on the expiry of 5 years from the date of his appointment, but in the case—

• (a) of a non-lawyer member, may be re-appointed by the Lord President after consultation with the Secretary of State; and

• (b) of a solicitor member, may be re-appointed by the Lord President on the recommendation of the Council.

3

The Lord President may from time to time terminate the appointment of any member of the Tribunal, and may fill any vacany therein by the appointment of a solicitor recommended by the Council or, as the case may be, after consultation with the Secretary of State, by the appointment of a non-lawyer member.

4

The Tribunal may appoint one of their number to be chairman, and may also appoint a clerk, who shall not be a member of the Tribunal, and, subject to the provisions of this Act, may regulate their procedure in such way as they may think fit.

5

The Tribunal shall be deemed to be properly constituted if—

• (a) at least 4 members are present, and

• (b) at least 2 solicitor members are present, and

• (c) at least 2 non-lawyer members are present.

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

6

There shall be paid to the non-lawyer members of the Tribunal out of money provided by Parliament such fees and allowances as the Secretary of State may . . . determine.

Part II — Procedure and Powers of Tribunal

Complaints

7

The making of a complaint to the Tribunal or the giving of any information in connection with a complaint shall confer qualified privilege.

8

A complaint made to the Tribunal shall not be withdrawn except with the Tribunal’s leave and subject to such conditions with respect to expenses or otherwise as the Tribunal thinks fit.

9

Subject to Part IV, the Tribunal may dismiss a complaint against a solicitor or an incorporated practice—

• (a) without requiring the solicitor or the incorporated practice to answer the allegations made against him or, as the case may be, it or without holding any enquiry if—

• (i) they are of the opinion that the complaint discloses noprima facie case of professional misconduct on the part of the solicitor or, of failure on the part of the incorporated practice to comply with any provision of this Act or of rules made under this Act. . . ; or

• (ii) the complainer fails to comply with any rule made under section 52; or

• (b) without hearing parties if they are of the opinion upon consideration of the complaint and other documents that they disclose no case of professional misconduct on the part of the solicitor or, of failure on the part of the incorporated practice to comply with any provision of this Act or of rules made under this Act. . . .

10

The Tribunal shall give notice of the complaint to the solicitor or incorporated practice against whom the complaint is made (“the respondent”) and shall enquire into the complaint, giving him or, as the case may be, it reasonable opportunity of making his or, as the case may be, its defence.

11

For the purpose of enquiring into the complaint the Tribunal may administer oaths and receive affirmations; and the complainer and respondent shall each be entitled—

• (a) to require the evidence of parties, witnesses and others interested, and

• (b) to call for and recover such evidence and documents, and examine such witnesses, as they think proper, but no person shall be compelled to produce any document which he could not be compelled to produce in an action.

12

On a petition by the complainer or the respondent to the Court, or to the sheriff having jurisdiction in any place in which the respondent carries on business, the Court or, as the case may be, the sheriff, on production of copies (certified by the Clerk of the Tribunal) of the complaint and answers, if lodged, together with a statement signed by the clerk specifying the place and date of the hearing of the complaint and certifying that notice to that effect has been given to the complainer and to the respondent, and on being satisfied that it would be proper to compel the giving of evidence by any witness or the production of documents by any haver, may—

• (a) grant warrant for the citation of witnesses and havers to give evidence or to produce documents before the Tribunal, and for the issue of letters of second diligence against any witness or haver failing to appear after due citation;

• (b) grant warrant for the recovery of documents; and

• (c) appoint commissioners to take the evidence of witnesses, to examine havers, and to receive exhibits and productions.

Decisions

13

The Tribunal shall set out in their decision—

• (a) in the case of a complaint, the facts proved, and

• (b) in the case of a conviction, particulars of the conviction and sentence.

and shall in the case of a complaint add to their decision a note stating the grounds on which the decision has been arrived at.

14

Every decision on the Tribunal shall be signed by the chairman or other person presiding and shall, subject to paragraph 14A, be published in full.

15

A copy of every decision by the Tribunal certified by the clerk shall be sent forthwith by the clerk to the respondent , the complainer and, as the case may be, the person who made the complaint as respects which the appeal was made to the Tribunal intimating the right of appeal available from that decision under this Act.

16

In the case of a decision by the Tribunal—

• (a) ordering a solicitor to be struck off the roll; or

• (b) ordering a solicitor to be suspended from practice; or

• (c) censuring a solicitor or an incorporated practice; or

• (d) fining a solicitor or an incorporated practice, or

• (e) order that the recognition under section 34(1A) of an incorporated practice be revoked; or

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

• (g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (h) ordering that an investment business certificate issued to a solicitor, a firm of solicitors or an incorporated practice be—

• (i) suspended; or

• (ii) subject to such terms and conditions as they may direct; or

• (iii) revoked,

on the expiration of the days of appeal (if any) without an appeal being lodged or, where an appeal has been lodged, if and as soon as the appeal is withdrawn or a decision by the Court is given in terms of subparagraphs (a) to (h) or in the case of a decision of the Tribunal under section 53(6) or (6B) which has not been varied or quashed by the Court or under section 53(6A) which has not been varied by the court, the clerk of the Tribunal shall immediately send to the Council a copy of the decision of the Tribunal certified by him and a copy of the decision by the Court in any appeal, and the Council shall forthwith give effect to any order as to striking the solicitor off the roll and to any terms and conditions directed by the Tribunal under section 53(5); and in any other case shall cause a note of the effect of the decision to be entered against the name of the solicitor in the roll or as revoking the recognition under section 34(1A) of an incorporated practice.

17

The Council shall forthwith intimate any order striking a solicitor off the roll or suspending a solicitor from practice to each sheriff clerk and . . ., to the Principal Clerk of Session, and shall , without prejudice to paragraph 14, cause a notice of the operative part of the order to be published in the Edinburgh Gazette . . .

18

The file of orders under this Act striking solicitors off the roll, suspending solicitors from practice, or restoring persons to the roll shall be open for inspection at the office of the Society at any reasonable hour by any person without payment of any fee.

Expenses

19

Subject to the provisions of Part IV, the Tribunal may make in relation to any complaint against a solicitor such order as it thinks fit as to the payment by the complainer or by the respondent of the expenses incurred by the other party and by the Tribunal or a reasonable contribution towards those expenses.

20

On the application of the person in whose favour an order for expenses under paragraph 19 is made and on production of a certificate by the clerk of the Tribunal that the days of appeal against the order have expired without an appeal being lodged or, where such an appeal has been lodged, that the appeal has been dismissed or withdrawn, the Court may grant warrant authorising that person to recover those expenses from the person against whom the order was made.

21

Such warrant shall have effect for execution and for all other purposes as if it were an extracted decree of court awarded against the person against whom the order of the Tribunal was made.

22

The expenses of the Tribunal so far as not otherwise defrayed shall be paid by the Society as part of the expenses of the Society.

SCHEDULE 5

1

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2

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3

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4

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5

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6

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7

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8

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

9

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

10

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

SCHEDULE 6

General

1

• (1) Insofar as—

• (b) any approval, consent, direction or notice given by virtue of such an enactment, or

• (c) any complaint made or investigation begun by virtue of such enactment, or

• (d) any other proceedings begun by virtue of such an enactment, or

• (e) anything done or having effect as if done,

could, if a corresponding enactment in this Act were in force at the relevant time, have been made, given, begun or done by virtue of the corresponding enactment, it shall, if effective immediately before the corresponding enactment comes into force, continue to have effect thereafter as if made, given, begun or done by virtue of that corresponding enactment.

• (2) Where—

• (a) there is any reference in this Act (whether expressed or implied) to a thing done or required or authorised to be done, or a thing omitted, or to an event which has occurred, under or for the purposes of or by reference to or in contravention of this Act, then

• (b) that reference shall be construed (subject to its context) as including a reference to the corresponding thing, done or required or authorised to be done, or omitted, or to the corresponding events which occurred, as the case may be, under or for the purposes of or by reference to or in contravention of any of the corresponding provisions of the repealed enactments.

2

Where any enactment passed before this Act or any instrument of document refers either expressly or by implication to an enactment repealed by this Act, the reference shall (subject to its context) be construed as or as including a reference to the corresponding provision of this Act.

3

Where any period of time specified in an enactment repealed by this Act is current at the commencment of this Act, this Act has effect as if its corresponding provision has been in force when the period began to run.

Admission of enrolled law agent

4

Notwithstanding the repeal by this Act of section 15 of the Solicitors (Scotland) Act 1933, the Court may grant an application to be admitted as a solicitor to any applicant who was on 28th June 1933 entitled to be admitted as an enrolled law agent according to the regulations for admission then in force under the Law Agents (Scotland) Act 1873.

Restriction of grant under Guarantee Fund

5

Notwithstanding the repeal by this Act of section 22(2)(b) of the Legal Aid and Solicitors (Scotland) Act 1949, no grant shall be made by the Council under section 43 in respect of a loss which in the opinion of the Council arose before 1st November 1951.

Rights of banks

6

Nothing in section 61(3) shall deprive a bank of any right existing on 1st November 1949.

Admission to societies

7

Notwithstanding the repeal by this Act of sections 44 and 45 of the Solicitors (Scotland) Act 1933 any society may—

• (a) admit a solicitor as a member on such conditions as it thinks fit;

• (b) accept as a qualification for admission an apprenticeship served under the provisions of this Act with a solicitor who is not a member.

Powers of societies

8

The repeal of Section 35 of the Solicitors (Scotland) Act 1933 is without prejudice to powers of control exercisable by any society over its members, being powers the society were entitled to exercise immediately before 1st March 1934.

Saving for non-qualified person to conduct certain proceedings

9

Nothing in this Act shall affect any enactment empowering any person, not being a person qualified to act as a solicitor, to conduct, defend or otherwise act in relation to any action or proceedings in any court.

Register of Law Agents

10

Notwithstanding the repeal by this Act of section 18(1) of the Solicitors (Scotland) Act 1933, the Council shall continue to keep in their custody the Register of Law Agents kept under the Law Agents (Scotland) Act 1873 and any relative documents transferred to their custody by virtue of section 18(4) of the Solicitors (Scotland) Act 1949.

Certificate of admission

11

Notwithstanding the repeal by this Act of section 14 of the Solicitors (Scotland) Act 1933, the certificate of admission of a solicitor shall be in writing and signed by a judge of the Court.

SCHEDULE 7

Establishment and objects of Law Society of Scotland.

3A

• (1) The Council may arrange for any of their functions (other than excepted functions) to be discharged on their behalf by—

• (a) a committee of the Council;

• (b) a sub-committee of such a committee; or

• (c) an individual (whether or not a member of the Society’s staff).

• (2) Where, under subsection (1)(a), the Council have arranged for any of their functions to be discharged by a committee, the committee may, with the approval of the Council, arrange for that function to be discharged on behalf of the Council by—

• (a) a sub-committee of the committee; or

• (b) an individual (whether or not a member of the Society’s staff).

• (3) Where, under subsection (1) or (2), the Council or a committee have arranged for any of the Council’s functions to be discharged by a sub-committee, the sub-committee may, with the approval of the Council, arrange for that function to be discharged on behalf of the Council by a member of the Society’s staff.

• (4) A power given by subsection (1), (2) or (3) may be exercised so as to impose restrictions or conditions on the body or person by whom the function concerned is to be discharged.

• (5) Any arrangement made under this section shall not arrange for any of the following functions of the Council to be discharged by an individual—

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

• (aa) that under section 47(2) of the 2007 Act of determining what action to propose, or take, as respects a conduct complaint remitted to them under section 6(2)(a) or 15(5)(a) of that Act;

• (ab) that under—

• (i) section 42ZA(1) or (2) of this Act or section 20ZB(1) or (2) of the 1990 Act of determining whether or not to uphold a conduct complaint so remitted which suggests unsatisfactory professional conduct;

• (ii) section 42ZA(3)(b) of this Act or section 20ZB(3)(b) of the 1990 Act of determining what steps to take when upholding such a conduct complaint;

• (ac) that under section 51(1) of this Act of determining whether or not to make a complaint to the Tribunal as respects a conduct complaint so remitted which suggests professional misconduct;

• (ad) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (b) that under section 20(1) or (2) of the 1990 Act . . . of determining—

• (i) whether paragraph (a) or (d) of the said section 20(1) applies to the practitioner;

• (ii) what action to take in the matter.

• (6) An arrangement made under this section may identify an individual by name or by reference to an office or post which the individual holds.

• (7) An arrangement under this section for the discharge of any of the functions of the Council may extend to any of the functions of the Society which is exercisable by the Council.

• (8) Where any arrangement is made under this section for the discharge of any of the functions of the Council by a body or person, the function shall be exercised by that body or person in the name of the Council, except that, where the function in question is a function of the Society which is exercisable by the Council, it shall be exercised in the name of the Society.

• (9) Any arrangement under this section for the discharge of any of the functions of the Council—

• (a) does not affect the responsibility of the Council for the exercise of the function or any liability arising therefrom;

• (b) does not prevent the Council from exercising the function; and

• (c) may be revoked at any time by the Council and also, in the case of any arrangement made under subsection (2) or (3), by the committee or sub-committee which made that arrangement.

• (10) In this section, “ excepted functions ” means—

• (a) any function of the Council to make rules or regulations under this Act or any other enactment; and

• (b) any function of the Council under paragraph 2 of Schedule 1 to prepare a scheme (scheme for the constitution of the Council etc. ).

• (11) This sectionis—

• (a) subject to sections 3B to 3G, and

• (b) without prejudice to any other power which the Council may have to arrange for the discharge of their functions.

• (12) During any period before—

• (a) paragraph 14(6)(a) of schedule 4 to the Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4) comes into force, subsection (5) applies as if paragraph (b) and the word “and” that precedes it were omitted;

• (b) section 12(c) of that Act comes into force, subsection (5)(a) applies as if for the words “the 1990 Act” there were substituted the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40) (“ the 1990 Act ”).

Training regulations.

Register of European lawyers

12A

• (1) The Council shall establish and maintain the register referred to in regulation 15 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, and shall keep the register at the office of their secretary.

• (2) The register shall consist of the names in alphabetical order of all European lawyers entered on it in accordance with regulation 17 of those regulations as it has effect by virtue of regulation 6 or 7 of the Services of Lawyers and Lawyer's Practice (EU Exit) (Scotland) (Amendment etc.) Regulations 2019.

• (2A) The register is also to record against the name of each lawyer entered on it the address of the place of business of that lawyer and related information (as given under section 12B(1)).

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

• (4) Schedule 2 (powers of Council in relation to roll of solicitors) shall apply to the register as it does to the roll and in its application to the register the words “section 7(3)” in paragraph 4 shall be read as if the words “section 12A” were substituted therefor.

12B

• (1) Any registered European lawyer–

• (a) shall, on registration, inform the Council in writing of the address of his place of business, his home professional title, and the name and address of the competent authority with which he is registered in his home state; and

• (b) shall thereafter inform the Council of any change to the information required under paragraph (a) above.

• (2) The Council shall issue a registration to any registered European lawyer who applies for it.

12C

• (1) A registered European lawyer who wishes his name, or any annotation made against his name under section 25A(3), to be removed from the register 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 register.

• (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.

12D

• (1) Subject to subsection (2), a registered European lawyer whose name has been removed from the register shall be entitled to have his name restored to the register only if, on an application in that behalf made by him to the Tribunal and after such enquiry as the Tribunal thinks proper, the Tribunal so orders.

• (2) On an application to the Council by a registered European lawyer whose name, or any annotation against whose name, has been removed from the register under section 12C, the Council may, after such inquiry as they think proper, restore the name of the registered European lawyer or, as the case may be, the annotation, to the register.

• (3) Rules made by the Tribunal under section 52 may–

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

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

23A

Failure on the part of a registered European lawyer in practice to have in force a current registration certificate may be treated as professional misconduct for the purposes of Part IV.

23B

Failure on the part of a registered foreign lawyer in practice to have in force a current registration certificate may be treated as professional misconduct for the purposes of Part IV.

Registration certificates for registered European Lawyers

24A

• (1) Subject to sections 24B to 24G below, the Council may make rules with respect to–

• (a) applications for;

• (b) the issue of;

• (c) the keeping of a register for and the issue of,

registration certificates for registered European lawyers as it would make rules under section 13 with respect to practising certificates for enrolled solicitors.

• (2) Any person may inspect the register referred to in subsection (1)(c) during office hours without payment.

• (3) The making of a false statement by a registered European lawyer in an application for a registration 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.

24B

• (1) The Council shall issue to a registered European lawyer on application being made by him, a registration certificate in accordance with rules made by them under section 24A.

• (2) The Council shall not issue a registration certificate to a registered European lawyer while his registration is suspended or withdrawn.

24C

• (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 renewal of a registration 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 registration certificate to the applicant subject to such conditions as the Council may think fit.

• (2) Subject to subsections (3) and (4) below, this section shall have effect in any case where a registered European lawyer applies for a renewal of a registration certificate–

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

• (b) when a period of 12 months or more has elapsed since he held a registration certificate in force; or

• (c) without having paid in full any fine imposed on him under Part IV; or

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

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

• (f) when, having had his registration withdrawn, he has been registered again; or

• (g) 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

• (h) when, after a complaint has been made–

• (i) relating to his conduct of the business of a client 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) of delay in 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

• (i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

• (4) Where the Council decide to issue a registration certificate subject to conditions, they may, if they think fit, postpone the issue of the registration certificate pending the hearing and determination of an appealunder section 24D.

24D

• (1) Where–

• (a) an application for a registration certificate is duly made to the Council otherwise than in a case where section 24C has effect and the Council refuse or neglect to issue a registration 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 24C, refuse to issue a registration certificate, or issue a registration 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 registration certificate to the applicant subject to such conditions if any as the court thinks fit; or

• (c) make such order as it thinks fit.

24E

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

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

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

• (4) On the name of a registered European lawyer being withdrawn from the register or on a registered European lawyer being suspended from practice as a registered European lawyer, any registration certificate for the time being in force of that registered European lawyer shall cease to have effect, but in the case of suspension, if he ceases to be so suspended during the period for which the registration would otherwise have continued in force, the registration certificate shall thereupon again have effect.

24F

• (1) If–

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

• (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (c) the estate of a registered European lawyer is sequestrated;

• (d) a registered European lawyer grants a trust deed for behoof of creditors;

• (e) a judicial factor is appointed on the estate of a registered European lawyer;

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

• (1A) The Council may suspend from practice a registered European lawyer 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.

• (2) On the occurrence of any of the circumstances mentioned in subsection (1) or (1A) , the registered European lawyer in question shall intimate those circumstances to the Council in writing immediately.

• (3) On the occurrence of the circumstances mentioned in paragraph (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.

24G

• (1) The provisions of this section shall have effect in relation to a registration certificate which has ceased to have effect by virtue of section 24F during the period when that registration certificate would, but for that section, have continued in force.

• (2) A registration certificate which has ceased to have effect by virtue of paragraph (c) or (d) of section 24F(1) shall again have effect on the registered European lawyer being granted his discharge.

• (3) A registration certificate which has ceased to have effect by virtue of paragraph (e) of section 24F(1) shall again have effect on the judicial factor being granted his discharge.

• (4) Where a registered European lawyer is suspended from practice as a registered European lawyer by virtue of paragraph (a) . . . of section 24F(1), the period of suspension shall, for the purposes of section 24C(2)(e), expire on the registered European lawyer ceasing to be detained. . . .

• (4A) A suspension from practice arising by virtue of section 24F(1A) expires if the grounds for it no longer apply.

• (4B) On the occurrence of any of the circumstances mentioned in subsections (2) to (4A), the lawyer concerned must notify the Council in writing (and without delay).

• (5) Where a registered European lawyer is suspended from practice as a registered European lawyer by virtue of paragraph (c), (d) or (e) of section 24F(1) or by virtue of section 24F(1A) , he may at any time apply to the Council to terminate the suspension.

• (6) On an application under subsection (5), the Council may either–

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

• (b) refuse the application.

• (7) If on an application by a registered European lawyer under subsection (5) the Council refuse the application or grant it subject to conditions, the registered European lawyer may appeal against the decision to the court, who may–

• (a) affirm the decision; or

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

• (c) terminate the suspension either with or without conditions.

25A

• (1) Subject to regulations 6 and 11 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 and without prejudice to section 103(8) of the Criminal Procedure (Scotland) Act 1995 (right of solicitor to appear before single judge) and section 48(2)(b) (extension of rights of audience by act of sederunt) of the Court of Session Act 1988, a solicitor who—

• (a) seeks a right of audience in, on the one hand, the Court of Session, the Supreme Court and the Judicial Committee of the Privy Council or, on the other hand, the High Court of Justiciary and the Judicial Committee of the Privy Council; and

• (b) has satisfied the Council as to the requirements provided for in this section,

shall have a right of audience in those courts or, as the case may be, that court.

• (2) The requirements mentioned in subsection (1), in relation to the courts or, as the case may be, the court in which a solicitor seeks a right of audience, are that—

• (a) he has completed, to the satisfaction of the Council, a course of training in evidence and pleading in relation to proceedings in those courts or that court;

• (b) he has such knowledge as appears to the Council to be appropriate of—

• (i) the practice and procedure of; and

• (ii) professional conduct in regard to, those courts or that court; and

• (c) he has satisfied the Council that he is, having regard among other things to his experience in appropriate proceedings in the sheriff court, otherwise a fit and proper person to have a right of audience in those courts or that court.

• (3) Where a solicitor has satisfied the Council as to the requirements of subsection (2) in relation to the courts or, as the case may be, the court in which he seeks a right of audience the Council shall make an appropriate annotation on the roll against his name.

• (4) The Council shall make rules under this section as to—

• (a) the matters to be included in, the methods of instruction to be employed in, and the qualifications of the person who will conduct, any course of training such as is mentioned in subsection (2)(a); and

• (b) the manner in which a solicitor’s knowledge of the practice and procedure and professional conduct mentioned in subsection (2)(b) is to be demonstrated,

and separate rules shall be so made in relation to, on the one hand, the Court of Session, the Supreme Court and the Judicial Committee of the Privy Council and, on the other hand, the High Court of Justiciary . . . .

• (5) The Council shall make rules of conduct in relation to the exercising of any right of audience held by virtue of this section.

• (6) Where a solicitor having a right of audience in any of the courts mentioned in subsection (1) is instructed to appear in that court, those instructions shall take precedence before any of his other professional obligations, and the Council shall make rules—

• (a) stating the order of precedence of those courts for the purposes of this subsection;

• (b) stating general criteria to which solicitors should have regard in determining whether to accept instructions in particular circumstances; and

• (c) securing, through such of their officers as they think appropriate, that, where reasonably practicable, any person wishing to be represented before any of those courts by a solicitor holding an appropriate right of audience is so represented,

and for the purposes of rules made under this subsection the Inner and Outer Houses of the Court of Session, and the High Court of Justiciary exercising its appellate Jurisdiction, may be treated as separate courts.

• (7) Subsection (6) does not apply to an employed solicitor whose contract of employment prevents him from acting for persons other than his employer.

• (8) Subject to subsections (9) and (10), the provisions of section 34(2) and (3) apply to rules made under this section as they apply to rules made under that section and, in considering any rules made by the Council under subsection (5), the Lord President shall have regard to the desirability of there being common principles applying in relation to the exercising of rights of audience by all practitioners appearing before the Court of Session and the High Court of Justiciary.

• (9) The Council shall, after any rules made under subsection (4) have been approved by the Lord President, submit such rules to the Secretary of State, and no such rules shall have effect unless the Secretary of State, after consulting the CMA in accordance with section 64A, has approved them.

• (10) The Council shall, after any rules made under subsection (5) have been approved by the Lord President, submit such rules to the Secretary of State.

• (11) Where the Secretary of State considers that any rule submitted to him under subsection (10) would directly or indirectly inhibit the freedom of a solicitor to appear in court or undertake all the work preparatory thereto he shall consult the CMA in accordance with section 64A.

• (12) The Council may bring into force the rules submitted by them to the Secretary of State under subsection (10) with the exception of any such rule which he has, in accordance with section 64B, refused to approve.

• (13) Nothing in this section affects the power of any court in relation to any proceedings—

• (a) to hear a person who would not otherwise have a right of audience before the court in relation to those proceedings; or

• (b) to refuse to hear a person (for reasons which apply to him as an individual) who would otherwise have a right of audience before the court in relation to those proceedings, and where a court so refuses it shall give its reasons for that decision.

• (14) Where a complaint has been made that a solicitor has been guilty of professional misconduct in the exercise of any right of audience held by him by virtue of this section, the Council may, or if so requested by the Lord President shall, suspend him from exercising that right pending determination of that complaint under Part IV.

• (14A) Where the Commission makes a determination under section 9(1) of the 2007 Act upholding a services complaint against a solicitor, the Council may, if they consider that the complaint has a bearing on his fitness to exercise any right of audience held by him by virtue of this section and that it is appropriate to do so, suspend or revoke the right.

• (15) Where a function is conferred on any person or body by this section he or, as the case may be, they shall exercise that function as soon as is reasonably practicable.

Rights of practising.

Privilege of incorporated practices from disclosure etc.

33A

• (1) Any communication made to or by an incorporated practice in the course of its acting as such for a client shall in any legal proceedings be privileged from disclosure in like manner as if the body had at all material times been a solicitor acting for the client.

• (2) Any enactment or instrument making special provision in relation to a solicitor or other legal representative as to the disclosure of information, or as to the production, seizure or removal of documents, with respect to which a claim to professional privilege could be maintained, shall, with any necessary modifications, have effect in relation to an incorporated practice as it has effect in relation to a solicitor.

33B

• (1) Any communication made to or by a registered foreign lawyer in the course of his actings as such for a client shall in any legal proceedings be privileged from disclosure in like manner as if the registered foreign lawyer had at all material times been a solicitor acting for a client.

• (2) Any enactment or instrument making special provision in relation to a solicitor or other legal representative as to the disclosure of information, or as to the production, seizure or removal of documents, with respect to which a claim to professional privilege could be maintained, shall, with any necessary modifications, have effect in relation to a registered foreign lawyer as it has effect in relation to a solicitor.

39A

• (1) This section applies where the Council are satisfied, in the case of any solicitor or incorporated practice, after inquiry and after giving the solicitor or incorporated practice an opportunity of being heard, that the solicitor or incorporated practice has issued an account for professional fees and outlays of an amount which is grossly excessive (whether or not the account has been paid by or on behalf of the client or debited by the solicitor or incorporated practice to the account of any sums held on behalf of the client).

• (2) Where this section applies the Council may—

• (a) in the case of a solicitor, withdraw his practising certificate; or

• (b) in the case of an incorporated practice, withdraw the practising certificates of all or any of the solicitors who are directors of the incorporated practice;

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