Solicitors (Scotland) Act 1980

SCHEDULES

Section 1.

SCHEDULE 1 The Law Society of Scotland

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, election, and proceedings of 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.

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;

(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 pay to the Society along with his application for a practising certificate such annual subscription as may be fixed from time to time by the Society in general meeting.

7 The annual subscription payable by a solicitor in respect of the year 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 annual subscription fixed under paragraph 6.

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.

In this paragraph " expenses of the Society " includes the expenses of the Tribunal so far as not otherwise defrayed and any expenses incurred by the Council in the exercise of their functions under this Act, and the reasonable travelling and maintenance expenses of members of the Council or committees of the Council incurred in attending meetings of the Council or committees, or otherwise incurred in the business of 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 Any deed to which the Society are a party shall be held to be validly executed on behalf of the Society if it is sealed with the common seal of the Society and subscribed on behalf of the Society by two members of the Council and the secretary of the Society or other person appointed by the Council to act for the secretary without attestation by witnesses.

Section 11.

SCHEDULE 2 The Roll : Directions by the Lord President and Ancillary Provisions

1 The Lord President may authorise the Council (as registrar of solicitors) for the purpose of maintaining the roll as correctly as is reasonably practicable—

(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 fulfil 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.

Section 43.

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 ") not exceeding the sum of £25.

(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.

(3) The Council shall not later than 31 July in each year fix the amount, if any, of the annual contribution to be paid in respect of the following year.

(4) No annual contribution shall be payable by a solicitor 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 a special 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) The amount payable by way of special contribution by a solicitor shall not in any year exceed the sum of £25.

(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 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 £20,000.

(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 generally or in relation to any solicitor or solicitors 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 any other person in respect of the loss.

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

(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 there-under, 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) If under section 38 any person (whether a solicitor or not) having possession or control of any documents mentioned in that section refuses or fails to produce or deliver them immediately on being required by the Council to do so or to cause them to be so produced or delivered, the Council may apply to the Court for an order requiring that person to produce or deliver the documents or to cause them to be produced or delivered to the person appointed at the place fixed by the Council within such time as Court may order.

(2) Upon taking possession of any such documents which have been produced or delivered to the Council, the Council shall serve upon the solicitor mentioned in section 38, and every such person, a notice giving particulars and the date on which they took possession.

(3) Every requirement made or notice given under section 38 or under this Part of this Schedule shall be in writing under the hand of such person as may be appointed by the Council for the purpose and may be served either personally or by registered letter or by a letter sent by recorded delivery service addressed to the last known place of business or residence of the person to whom the requirement is made or notice given.

(4) Within 14 days after service of a notice under sub-paragraph (2) the person upon whom such notice has been served may apply to the Court for an order directing the Council to return such documents to the person from whom they were received by the Council or to such other person as the applicant may request and on the hearing of any such application the Court may make the order applied for or such other order as they think fit.

(5) If no application is made to the Court under sub-paragraph (4) or if the Court on any such application directs that the documents in question remain in the custody or control of the Council, the Council may make enquiries to ascertain the person to whom they belong and may deal with the documents in accordance with the directions of that person.

Sections 50, 52.

SCHEDULE 4 Constitution, Procedure and Powers of Tribunal

PART I

Constitution

1 The Tribunal shall consist of—

(a) not less than 5 and not more than 7 members (in this Part referred to as " solicitor members") who are solicitors recommended by the Council as representatives of the solicitors' profession throughout Scotland, and

(b) two members (in this Part referred to as " lay members ") who are neither solicitors nor advocates,

appointed by the Lord President.

2 Each member of the Tribunal shall retire from office on the expiry of 5 years from the date of his appointment, but on the recommendation of the Council shall be eligible for re-appointment.

3 The Lord President may from time to time terminate the appointment of any member of the Tribunal, and may fill any vacancy therein by the appointment of a solicitor recommended by the Council or, as the case may be, by the appointment of a lay 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 1 lay member is present, and

(c) the number of solicitor members present exceeds the number of lay members present.

6 There shall be paid to the lay members of the Tribunal out of money provided by Parliament such fees and allowances as the Secretary of State may, with the approval of the Minister for the Civil Service, 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—

(a) without requiring the solicitor to answer the allegations made against him or without holding any enquiry if—

(i) they are of the opinion that the complaint discloses no prima facie case of professional misconduct on the part of the solicitor ; 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.

10 The Tribunal shall give notice of the complaint to the solicitor against whom the complaint is made (" the respondent") and shall enquire into the complaint, giving him reasonable opportunity of making his 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 may be published in such manner as the Tribunal may determine.

15 A copy of every decision by the Tribunal certified by the clerk shall be sent forthwith by the clerk to the respondent and to the complainer 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

(d) fining a solicitor,

on the expiration of the days of appeal 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 (d) or in the case of a decision of the Tribunal under section 53(6) which has not been varied or quashed 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.

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 also, in the case of a solicitor who carried on business in Edinburgh immediately before the order, to the Principal Clerk of Session, and shall cause a notice of the operative part of the order to be published in the Edinburgh Gazette and in such other manner, if any, as the Tribunal may direct.

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.

Section 49.

SCHEDULE 5 Lay Observer

1 The lay observer shall hold and vacate his office in accordance with the terms of his appointment and shall, on ceasing to hold office, be eligible for re-appointment.

2 The Secretary of State may give general directions to the lay observer about the scope and discharge of his functions, and shall publish any such directions.

3 The Society shall consider any report or recommendation which it receives from the lay observer, and shall notify him of any action which it has taken in consequence.

4 The Secretary of State may appoint staff for the lay observer.

5 Remuneration for the lay observer and his staff and any other expenses of the lay observer shall be paid out of money provided by Parliament.

6 In determining the terms of employment and remuneration of the lay observer and his staff, the number of his staff and any amount payable by way of expenses under paragraph 5, the Secretary of State shall act only with the approval of the Minister for the Civil Service.

7 The Society shall furnish the lay observer with such information as he may from time to time reasonably require.

8 The Secretary of State shall direct the submission to him of an annual report by the lay observer on the discharge of the functions conferred on the lay observer by this Act.

9 The Secretary of State shall lay a copy of any report under paragraph 8 before each House of Parliament.

10 In Part III of Schedule 1 to the House of Commons Disqualification Act 1975 (offices disqualifying for membership) there shall be inserted at the appropriate place in alphabetical order the entry " Lay observer appointed under section 49 of the Solicitors (Scotland) Act 1980 ".

Section 66.

SCHEDULE 6 Transitional and Savings Provisions

General

1 (1) Insofar as—

(a) any agreement, appointment, operation, authorisation, determination, scheme, instrument, order or regulation made by virtue of an enactment repealed by this Act, or

(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 commencement of this Act, this Act has effect as if its corresponding provision has been in force when that 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.

In this paragraph and in paragraph 7, " society " means a faculty or society of solicitors in Scotland, incorporated by Royal Charter or otherwise formed in accordance with law, other than the Law Society of Scotland.

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 legal proceedings.

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 [1873 c. 63.] Law Agents (Scotland) Act 1873 and any relative documents transferred to then-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.

Section 66.

SCHEDULE 7 Repeals

Chapter	Short Title	Extent of Repeal
23 & 24 Geo. 5. c. 21.	The Solicitors (Scotland) Act 1933.	The whole Act.
24 & 25 Geo. 5. c. 45.	The Solicitors Act 1934.	The whole Act.
12 & 13 Geo. 6. c. 63.	The Legal Aid and Solicitors (Scotland) Act 1949.	Part II and Schedules 4 to 7 except section 25(1), (1A), (3), (4), (5).
6 & 7 Eliz. 2. c. 28.	The Solicitors (Scotland) Act 1958.	The whole Act.
1965 c. 29.	The Solicitors (Scotland) Act 1965.	The whole Act.
1976 c. 6.	The Solicitors (Scotland) Act 1976.	The whole Act except section 9.