Solicitors (Scotland) Act 1980

• Citation: 1980 c. 46
• Sections: 200

Section 1 Establishment and objects of Law Society of Scotland.

(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.

Section 1A Power to act as statutory regulator

The Society may—

(a) act as an approved regulator within the meaning of Part 2 of the 2010 Act,

(b) do anything that is necessary or expedient for the purposes of doing so.

Section 2 Membership of Society.

(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.

Section 3 Establishment and functions of Council of Law Society.

(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 .

Section 3A Discharge of functions of Council of the Law Society

(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 section is—

(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 ”).

Section 3B Regulatory committee

(1) The Council must, for the purpose mentioned in subsection (2)—

(a) arrange under section 3A(1)(a) for their regulatory functions to be exercised on their behalf by a regulatory committee, and

(b) ensure that the committee continues so to exercise those functions (in particular, for the discharge of the Council's responsibility as mentioned in section 3A(9)(a)).

(2) The purpose is of ensuring that the Council's regulatory functions are exercised—

(a) independently of any other person or interest,

(b) properly in other respects (in particular, with a view to achieving public confidence).

(3) Accordingly, the Council must not—

(a) exercise their regulatory functions through any other means, or

(b) interfere unduly in the regulatory committee's business.

(4) Subsection (3)(a) is subject to—

(a) any determination made by the regulatory committee in a particular case that it is necessary, for ensuring that something falling within the Council's regulatory functions is achieved appropriately, that specific action be taken otherwise than through the regulatory committee, and

(b) such directions as the regulatory committee gives the Council (acting in any other capacity) in connection with the determination.

Section 3C Particular rules applying

(1) The following particular rules apply as respects the regulatory committee—

(a) the committee's membership may include persons who are not members of the Council,

(b) at least 50% of the committee's membership is to comprise lay persons,

(c) lay persons, where they are not members of the Council, are appointable to the committee if they would be appointable to the Council as non-solicitor members (see paragraph 3A(3) of Schedule 1),

(d) the committee is to appoint one of its lay members as its convener,

(e) if the convener is not present at a meeting of the committee, another of its lay members is to chair the meeting.

(2) Any sub-committee of the regulatory committee (formed under section 3A(2)(a)) is subject to the particular rules applying as respects the regulatory committee, except that—

(a) a meeting of the sub-committee need not be chaired by one of its lay members,

(b) it may co-opt members from outside the membership of the regulatory committee.

(3) Nothing done by the regulatory committee (or a sub-committee of it) is invalid solely because of a temporary shortfall in the number of its lay members.

(4) In subsection (1)(b), “lay persons” are persons who are not—

(a) solicitors,

(b) advocates,

(c) conveyancing or executry practitioners as defined in section 23 of the 1990 Act,

(d) those having a right to conduct litigation, or a right of audience, by virtue of section 27 of the 1990 Act, or

(e) confirmation agents or will writers within the meaning of Part 3 of the 2010 Act.

Section 3D Resolving regulatory disputes

(1) This section applies in relation to any dispute arising between the regulatory committee and the Council (acting in any other capacity) with respect to the application of section 3B.

(2) If the dispute cannot be settled by the parties, it is to be submitted to (and resolved by) arbitration.

(3) The arbitrator is to be appointed—

(a) jointly by the parties, or

(b) in the absence of agreement for joint appointment, by the Lord President on a request made by either (or both) of them.

(4) The arbitrator's resolution of the dispute is final and binding on the parties.

Section 3E Further provision for section 3B etc.

(1) The Scottish Ministers may by regulations—

(a) prescribe a maximum—

(i) number of members that the regulatory committee, or any sub-committee of it, may have,

(ii) proportion of the membership (of either) that may comprise co-opted members,

(b) make further provision about the Council's regulatory functions if they believe that such provision is necessary for ensuring that those functions are exercised in accordance with the purpose stated in section 3B(2),

(c) modify (by elaboration or exception) the definition in sections 3F and 3G if they believe that such modification is appropriate.

(2) Before making regulations under subsection (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 subsection (1) is exercisable by statutory instrument; but—

(a) a statutory instrument containing regulations under subsection (1)(a) is subject to annulment in pursuance of a resolution of the Scottish Parliament,

(b) a statutory instrument containing regulations under subsection (1)(b) or (c) is not to be made unless a draft of the instrument has been laid before, and approved by a resolution of, the Parliament.

Section 3F Meaning of “regulatory functions”

(1) For the purposes of sections 3B to 3E, the Council's “regulatory functions” are their functions of regulating in respect of any matter the professional practice, conduct and discipline of—

(a) solicitors (including firms of solicitors) and incorporated practices,

(b) other legal practitioners, for example—

(i) registered European or foreign lawyers,

(ii) conveyancing or executry practitioners.

(2) Those functions include (in particular) their functions as to—

(a) setting standards of qualification, education and training,

(b) admission of persons to the profession,

(c) keeping the roll and other registers,

(d) administering the Guarantee Fund,

(e) making regulatory rules under any relevant enactment.

(3) In subsection (1)(b)(ii), the reference to conveyancing or executry practitioners is to be construed in accordance with section 23 of the 1990 Act.

Section 3G Extended meaning under section 3F

If the Society acts as an approved regulator as mentioned in section 1A, the Council's “ regulatory functions ” for the purposes of sections 3B to 3E also comprise such regulatory functions as—

(a) fall within the meaning of that expression as given for the purposes of Part 2 of the 2010 Act (by section 30(1) of that Act), and

(b) are exercisable under that Part of that Act by the Society in its capacity as an approved regulator as so mentioned.

Section 4 Qualifications for practising as a solicitor.

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”).

Section 5 Training regulations.

(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;

(c) the passing of examinations.

(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

(c) may make different provision for different circumstances.

Section 6 Admission as solicitor.

(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.

Section 7 Keeping the roll.

(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.

Section 8 Entry in the roll.

(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.

Section 9 Removal of name from roll on request.

(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.

Section 10 Restoration of name to roll on request.

(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.

Section 11 Directions by Lord President.

(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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Section 12A Keeping the register

(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.

Section 12B Information to be provided by registered European lawyers

(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.

Section 12C Removal of name from register on request

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.

Section 12D Restoration of name to register on request

(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.

Section 13 Applications for practising certificates.

(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;

(c) the keeping of a register of applications for and 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.

Section 14 Issue of practising certificate.

(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.

Section 15 Discretion of Council in special cases.

(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

(c) when a period of 12 months or more has elapsed since he held a practising certificate in force; 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.

Section 16 Appeals from decisions of Council.

(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

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

Section 17 Date and expiry of practising certificates.

(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.

Section 18 Suspension of practising certificates.

(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);

(c) the estate of the solicitor is sequestrated;

(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.

Section 19 Further provisions relating to suspension of practising certificates.

(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

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

Section 20 Council’s duty to supply lists of solicitors holding practising certificates.

(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.

Section 21 Consultants to hold practising certificates.

(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.

Section 22 Evidence as to holding of practising certificates.

(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.

Section 23 Offence to practise without practising certificate.

(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.

Section 23A Professional misconduct for registered European lawyer to practise without a registration certificate

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.

Section 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.

Section 24 Saving of public officials.

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.

Section 24A Applications for registration certificates

(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.

Section 24B Issue of registration certificates

(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.

Section 24C Discretion of Council in special cases

(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.

Section 24D Appeals from decisions of Council

(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.

Section 24E Date and expiry of registration certificate

(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.

Section 24F Suspension of registration certificate

(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.

Section 24G Further provisions relating to suspension of registration certificate

(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.

Section 25 Rights of practising.

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

Section 25A Rights of audience in the Court of Session, the Supreme Court , the Judicial Committee of the Privy Council and the High Court of Justiciary.

(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.

Section 26 Offence for solicitors to act as agents for unqualified persons.

(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

(c) subject to subsection (4), draws or prepares any writ to which section 32 applies, 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 2000 who is employed full-time on a fixed salary by a body corporate or employed by a law centre or a citizens advice body .

(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.

Section 28 Offence for solicitors who are disqualified to seek employment without informing employer.

Any person who—

(a) has been struck off the roll; or

(b) suspended from practice as a solicitor ; or

(c) has had his registration as a registered European lawyer withdrawn; 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 practice or 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.

Section 30 Liability for fees of other solicitor.

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.

Section 31 Offence for unqualified persons to pretend to be solicitor or notary public.

(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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .