Solicitors (Scotland) Act 1980

PART I Organisation

The Law Society of Scotland

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.

(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.

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.

The Council of the Law Society

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 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.

PART II Right to Practise as a Solicitor

Qualifications and Training

4 Qualifications for practising as 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 ").

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.

Admission

6 Admission as solicitor

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

(a) he is aged 21 years or over ; and

(b) he has satisfied the Council by affidavit or otherwise—

(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) If any person who has complied with the requirements of subsection (1) applies by petition to the Court for admission as a solicitor and produces the certificate mentioned in paragraph (b) of that subsection, 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.

(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 [63 and 64 Vict. c. 14.] Colonial Solicitors Act 1900 or any Order in Council made under that Act (admission as solicitors in Scotland of solicitors of certain overseas territories).

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

The Roll

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.

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

8 Entry in 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 enrolment, 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.

9 Removal of name from roll on request

—An enrolled solicitor who wishes his name to be removed from the roll of solicitors may make an application to the Council in that behalf, and the Council shall—

(a) in any case where the application is made with the consent of the Tribunal;

(b) in any other case, on the solicitor satisfying the Tribunal that he has made adequate arrangements with respect to the business he has then in hand,

remove the name of that solicitor from the roll.

10 Restoration of name to roll on request

(1) A solicitor whose name has been removed from the roll under section 9 or 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.

(2) 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 roll as the rules may specify.

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) Schedule 2 shall have effect in relation to any such directions.

12 Power of Court to prescribe fees

(1) Fees payable to the Council in respect of matters arising in connection with the keeping of the roll may be prescribed by rules of court.

(2) Fees payable under subsection (1) include an annual fee payable by enrolled solicitors in respect of the cost of keeping the roll.

Practising Certificates

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.

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 practising certificate to a solicitor while he is suspended from practice.

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) still having to serve a post qualifying obligatory year of practical training in terms of an undertaking by him to that effect in his indenture of apprenticeship; or

(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 Part IV; or

(e) without having paid in full any expenses for which he has been found liable under section 38 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, 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 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.

(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.

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

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.

18 Suspension of practising certificates

(1) If—

(a) in pursuance of the [1960 c. 61.] Mental Health (Scotland) Act 1960,

a solicitor is, by reason of mental disorder, admitted to a hospital and becomes liable to be detained there or becomes subject to guardianship;

(b) a curator bonis is appointed on the estate of a solicitor;

(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.

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

(3) On the occurrence of the circumstances 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.

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) A practising certificate which has ceased to have effect by virtue of paragraph (a) of section 18(1) shall again have effect on the solicitor ceasing to be liable to be detained or subject to guardianship.

(3) A practising certificate which has ceased to have effect by virtue of paragraph (b) of section 18(1) shall again have effect on the curator bonis being discharged.

(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.

(6) Where a solicitor is suspended from practice as a solicitor by virtue of paragraphs (c), (d) or (e) of section 18(1), 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.

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; and

(b) to each sheriff clerk ;

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

(2) The Council shall send a list of all such solicitors carrying on business in Edinburgh to the Principal Clerk of Session as soon as practicable after 1st December in each year.

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

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

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.

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.

24 Saving for 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.

Rights of Solicitors

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.

Restriction on rights of practising

26 Offence for solicitors to act as agents for unqualified persons

(1) Any solicitor to whom this subsection applies who 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 name to be made use of in any way in any such action or proceedings ; or

(c) draws or prepares any writ to which section 32 applies, or

(d) permits or suffers his 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, not being a solicitor who is employed full-time on a fixed salary by a body corporate.

(3) In this section " person " includes a body corporate.

27 Offence for solicitors to share fees with unqualified persons

(1) Subject to subsection (2) any solicitor who shares with an unqualified person any profits or fees derived from any solicitor's business transacted by him shall be guilty of an offence.

(2) Subsection (1) does not apply to a solicitor sharing the profits or fees derived from such a business with—

(a) a person who has ceased to practise as a solicitor if such share—

(i) is in respect of the price or value of the business transferred by that person to him; or

(ii) is a voluntary or other allowance made to that person as a former partner in the business; or

(b) the widow, heirs, executors, representatives, next of kin, or dependents of any deceased solicitor who was a partner in the business at the date of his death, or whose business he has purchased or succeeded to; or

(c) any clerk or assistant who is wholly employed by him if such share is a salary partly or wholly paid on the basis of a percentage of those profits; or

(d) any public officer if such share is in respect of work done in the course of his duty; or

(e) a person qualified to act as a solicitor in some part of the United Kingdom other than Scotland or in any British possession if such share is paid in accordance with an agreement between them for sharing fees.

(3) In paragraph (e) of subsection (2), " British possession " means any part of Her Majesty's dominions outside the United Kingdom as at 1st March 1934.

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,

and while so disqualified from practice seeks or accepts employment by a solicitor in connection with that solicitors practice without previously informing him that he is so disqualified, shall be guilty of an offence.

29 Restriction on borrowing processes

(1) A solicitor shall not be entitled to borrow the process in any proceedings depending before the Court unless he has a place of business in Edinburgh.

(2) A solicitor shall not be entitled to borrow the process in any proceedings depending before an inferior court unless he has a place of business within the jurisdiction of that court.

30 Liability for fees of other solicitor

Where a solicitor, authorised by and acting for a client employs another solicitor he shall (whether or not he discloses the client) be liable to the other solicitor for that other solicitor's fees and outlays, unless at the time of the employment he expressly disclaims any such liability.

Unqualified persons acting as solicitors

31 Offence for unqualified person to pretend to be solicitor

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

(a) pretends to be a solicitor or notary public ; 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 or recognised by law as so qualified ;

shall be guilty of an offence.

32 Offence for unqualified person to prepare certain documents

(1) Subject to the provisions of this section, any unqualified person (including a body corporate) who draws or prepares—

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

(b) any writ relating to any legal proceedings; or

(c) any papers on which to found or oppose an application for a grant of confirmation in favour of executors,

shall be guilty of an offence.

(2) Subsection (1) shall not apply—

(a) to an unqualified person if he proves that he drew or prepared the writ or papers in question without receiving, or without expecting to receive, either directly or indirectly, any fee, gain or reward ; or

(b) to an advocate; or

(c) to any public officer drawing or preparing writs in the course of his duty ; or

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

(3) In this section " writ " does not include—

(a) a will or other testamentary writing;

(b) a document in re mercatoria, missive or mandate;

(c) a letter or power of attorney;

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

33 Unqualified persons not entitled to fees, etc.

No fee, reward, outlay or expenses on account of or in relation to any act or proceeding done or taken by any person who—

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

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

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

PART III Professional Practice, Conduct and Discipline of Solicitors

Practice rules

34 Rules as to professional practice, conduct and discipline

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

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

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

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

(c) take into consideration any resolution passed at that meeting relating to amendments to the draft rules.

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

(4) If any solicitor fails to comply with any rule made under this section that failure may be treated as professional misconduct for the purposes of Part IV.

Accounts rules

35 Accounts rules

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

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

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

(i) a deposit or share account with a building society designated under section 1 of the [1959 c. 33.] House Purchase and Housing Act 1959, or

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

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

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

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

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

(a) the Bank of England ;

(b) a Trustee Savings Bank within the meaning of section 95 of the [1969 c. 50.] Trustee Savings Bank Act 1969;

(c) the National Savings Bank;

(d) the Post Office, in the exercise of its powers to provide banking services;

(e) a recognised bank within the meaning of the [1979 c. 37.] Banking Act 1979; and

(f) any other company as to which immediately before the repeal of the [1963 c. 16.] Protection of Depositors Act 1963 the Secretary of State was satisfied that it ought to be treated as a banking company for the purposes of that Act,

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

(3) If any solicitor fails to comply with any rule made under this section that failure may be treated as professional misconduct for the purposes of Part IV.

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

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

(b) who is in employment to which Part II of the [1972 c. 50.] Legal Advice and Assistance Act 1972 applies; or

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

so far as regards monies' received, held or paid by him in the course of that employment. In this subsection—

• " local authority " means a local authority within the meaning of the [1973 c. 65.] Local Government (Scotland) Act 1973 ;

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

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

36 Interest on client's money

(1) Accounts rules shall make provision for requiring a solicitor, in such cases as may be prescribed by the rules, either—

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

(b) to make good to the client out of the solicitor's own money a sum equivalent to the interest which would have accrued if the money so received had been kept as mentioned in paragraph (a).

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

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

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

37 Accountants' certificates

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

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

(3) The Council shall make rules (in this Act referred to as " accountant's certificate rules ") prescribing—

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

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

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

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

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

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

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

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

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

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

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

(a) prescribing—

(i) that other method ;

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

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

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

and a solicitor who satisfies the Council that he is complying with rules made under this subsection shall not be required to deliver an accountant's certificate in pursuance of subsection (2).

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

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

Powers of Council to intervene

38 Powers where dishonesty alleged

(1) If the Council have reasonable cause to believe that a solicitor or an employee of his has been guilty of any such dishonesty as is mentioned in section 43(2) they may—

(a) require the production or delivery to any person appointed by the Council at a time and place fixed by the Council of the documents to which this section applies;

(b) take possession of all such documents; and

(c) apply to the Court for an order that no payment be made by any banker, building society or other body named in the order out of any banking account or any sum deposited in the name of such solicitor or his firm without the leave of the Court and the Court may make such order.

(2) This section applies to the following documents—

(a) all books, accounts, deeds, securities, papers and other documents in the possession or control of such solicitor or his firm;

(b) all books, accounts, deeds, securities, papers and other documents relating to any trust of which he is a sole trustee or is a co-trustee only with one or more of his partners or employees.

(3) Part II of Schedule 3 shall have effect in relation to the powers of the Council under this section.

39 Powers where delay alleged

(1) If—

(a) a complaint is made to the Society that there has been undue delay on the part of a solicitor in dealing with any matter in which he or his firm is or has been concerned in a professional capacity, or any matter relating to a trust of which he is or was the sole trustee, or a co-trustee only with one or more of his partners or employees, and

(b) the Council are of opinion that the delay ought to be investigated,

the Council may by notice in writing at any time, and from time to time, require the solicitor to give an explanation of the delay.

(2) Any notice given by the Council under subsection (1) may specify a period, not being less than 21 days, within which they require an explanation to be furnished; and if within that period the solicitor does not reply or fails to furnish an explanation which the Council regard as sufficient and satisfactory, and he is so informed in writing, section 38 shall apply in relation to that solicitor and his firm in so far as it relates to documents or payments connected with the matter complained of (but not otherwise) and shall so apply notwithstanding that the Council may not have reasonable cause to believe that the solicitor has been guilty of any such dishonesty as is mentioned in section 43(2).

40 Powers where failure to comply with accounts rules etc.

(1) Where the Council are satisfied, in the case of any solicitor, after enquiry and after giving the solicitor an opportunity of being heard, that the solicitor is failing to comply with any provisions of—

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

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

so far as applicable in his case (in this section referred to as " the applicable provisions "), the Council may, subject to the provisions of this section, withdraw the practising certificate held by the solicitor, and the certificate shall thereupon cease to have effect and the solicitor shall be suspended from practice as a solicitor.

(2) On being satisfied by the solicitor that he is able and willing to comply with the applicable provisions, the Council, unless they are of opinion that the solicitor is liable to disciplinary proceedings under Part IV, shall terminate the suspension from practice of the solicitor and shall restore to him any practising certificate held by him for the practice year then current.

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

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

41 Appointment of judicial factor

Where the Council, in exercise of any power conferred on them by the accounts rules, have caused an investigation to be made of the books, accounts and other documents of a solicitor, and, on consideration of the report of the investigation, the Council are satisfied—

(a) that the solicitor has failed to a material extent to comply with the provisions of those rules, and

(b) that, in connection with his practice as a solicitor, either—

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

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

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

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

42 Distribution of sums in client bank account

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

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

(a) the sequestration of his estate;

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

(c) the appointment of a judicial factor on his estate.

(3) Where a solicitor keeps an account at a bank in his own name for a specified client no regard shall be had for the purposes of this section to the sum at the credit of that account or to any sums received by the solicitor in the course of his practice on behalf of that client and remaining due by him to that client, so far as these are represented by the sum at the credit of that bank account.

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

Protection of clients

43 Guarantee Fund

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

(2) Subject to the provisions of this section and of Schedule 3 the Guarantee Fund shall be held by the Society for the purpose of making grants in order to compensate persons who in the opinion of the Council suffer pecuniary loss by reason of dishonesty on the part of any solicitor in practice in the United Kingdom, or any employee of such a solicitor in connection with the practice of the solicitor, whether or not he had a practising certificate in force when the act of dishonesty was committed, and notwithstanding that subsequent to the commission of that act he may have died or had his name removed from or struck off the roll or may have ceased to practise or been suspended from practice.

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

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

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

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

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

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

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

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

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

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

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

(c) who is in any such employment as is specified in section 35(4);

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

44 Professional indemnity

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

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

(b) authorise or require the Society to take out and main-lain insurance with any person permitted under the [1974 c. 79.] Insurance Companies Act 1974 to carry on liability insurance business or pecuniary loss insurance business;

(c) require solicitors or any specified class of solicitors to take out and maintain insurance with any person permitted under the [1974 c. 79.] Insurance Companies Act 1974 to carry on liability insurance business or pecuniary loss insurance business.

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

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

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

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

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

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

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

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

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

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

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

(4) Failure to comply with rules made under this section may be treated as professional misconduct for the purposes of Part IV, and any person may make a complaint in respect of that failure to the Discipline Tribunal.

(5) In this section "professional liability" means any civil liability incurred by a solicitor or former solicitor in connection with his practice or in connection with any trust of which he is or formerly was a trustee.

45 Safeguarding interests of clients of solicitors struck off or suspended

(1) The following provisions of this section shall have effect in relation to the practice of a solicitor whose name is struck off the roll or who is suspended from practice as a solicitor under any provision of this Act.

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

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

(b) all sums of money due from him or his firm or held by him or his firm on behalf of his clients or subject to any such trust as aforesaid.

(3) if the solicitor fails so to satisfy the Council the provisions of section 38 shall apply in relation to that solicitor, notwithstanding that the Council may not have reasonable cause to believe that he has been guilty of any such dishonesty as is mentioned in section 43(2).

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

(5) In this section—

• " material date " means whichever is the latest of—

  (a)

  the date when the order of the Tribunal or Court by or in pursuance of which the solicitor is struck off the roll or suspended from practice is to take effect;

  (b)

  the last date on which—

  (i)

  an appeal against that order may be lodged or an application may be made to the Court under section 54(2), or

  (ii)

  an appeal against a decision of the Council under section 40 may be lodged ;

  (c)

  the date on which any such appeal is dismissed or abandoned; and

• " sole solicitor " means a solicitor practising under his own name or as a single solicitor under a firm name.

46 Safeguarding interests of clients in other cases

(1) Where the Council are satisfied that a sole solicitor is incapacitated by illness or accident to such an extent as to be unable to operate on, or otherwise deal with, any client account in the name of the solicitor or his firm, and that no other arrangements acceptable to the Council have been made, the right to operate on, or otherwise deal with, that account shall vest in the Society (notwithstanding any enactment or rule of law to the contrary) to the exclusion of any other person so long, but only so long, as the Council are satisfied that such incapacity and absence of other acceptable arrangements continues.

(2) Where a sole solicitor ceases to practise for any reason other than that his name has been struck off the roll or that he has been suspended from practice, and the Council are not satisfied that suitable arrangements have been made for making available to his clients or to some other solicitor or solicitors instructed by his clients or on their behalf—

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

(b) all sums of money due from him or his firm or held by him or his firm on behalf of his clients or subject to any such trust as aforesaid,

the provisions of section 38 shall apply in relation to that solicitor, notwithstanding that the Council may not have reasonable cause to believe that he has been guilty of any such dishonesty as is mentioned in section 43(2).

(3) Where a sole solicitor dies—

(a) the right to operate on or otherwise deal with any client account in the name of the solicitor or his firm shall vest in the Society (notwithstanding any enactment or rule of law to the contrary) to the exclusion of any personal representatives of the solicitor, and shall be exercisable as from the death of the solicitor ; and

(b) if the Council are not satisfied that suitable arrangements have been made for making available to the solicitor's clients or to some other solicitor or solicitors instructed by his clients or on their behalf—

(i) all deeds, wills, securities, papers, books of accounts, records, vouchers and other documents which were in his or his firm's possession or control which were held on behalf of his clients or which relate to any trust of which he was the sole trustee, or a co-trustee only with one or more of his employees, and

(ii) all sums of money which were due from him or his firm or were held by him or his firm on behalf of his clients or subject to any such trust as aforesaid,

the provisions of section 38 shall apply in relation to that solicitor notwithstanding that the Council may not have reasonable cause to believe that he had been guilty of any such dishonesty as is mentioned in section 43(2).

(4) In a case where the Society have operated on or otherwise dealt with a client account by virtue of subsection (3) the Society shall be entitled to recover from the estate of the solicitor who has died such reasonable expenses as the Society have thereby incurred.

(5) In this section " sole solicitor " has the same meaning as in section 45.

47 Restriction on employing solicitor struck off or suspended

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

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

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

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

48 Restriction on number of apprentices

(1) The Council may make rules as to the number of apprentices who may be taken by a solicitor or by a firm of solicitors; but any rules so made shall not come into operation until they have been approved by the Lord President

(2) A contravention by a solicitor of any rules made under this section may be treated as professional misconduct for the purposes of Part IV.

PART IV Complaints and Disciplinary Proceedings

Lay Observer

49 Investigation by lay observer of Society's treatment of complaints

(1) The Secretary of State, if he thinks fit, may, after consultation with the Lord President, appoint a person (in this section referred to as " the lay observer "), not being an advocate or a solicitor, to examine any written allegation made by or on behalf of a member of the public concerning the Society's treatment of a complaint about a solicitor or an employee of a solicitor made to the Society by that member of the public or on his behalf.

(2) Schedule 5 shall have effect in relation to the lay observer.

The Scottish Solicitors' Discipline Tribunal

50 The Tribunal

(1) For the purposes of this Part of this Act there shall be a tribunal, which shall be known as the Scottish Solicitors' Discipline Tribunal and is in this Act referred to as "the Tribunal".

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

51 Complaints to Tribunal

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

(2) The persons mentioned in subsection (3) may report to the Tribunal any case where it appears that a solicitor may have been guilty of professional misconduct (including any case where it appears that a solicitor may have been seeking to make extraordinary and apparently unjustified claims against his client), and any such report shall be treated by the Tribunal as a complaint under subsection (1).

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

(a) the Lord Advocate;

(b) any judge;

(c) the Auditor of the Court of Session;

(d) the Auditor of any sheriff court.

52 Procedure on complaints to Tribunal

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

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

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

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

53 Powers of Tribunal

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

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

(b) a solicitor has (whether before or after enrolment as a solicitor), been convicted by any court of an act involving dishonesty or has been sentenced to a term of imprisonment of not less than 2 years.

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

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

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

(c) subject to subsection (3), impose on the solicitor a fine not exceeding £250; or

(d) censure the solicitor; or

(e) impose such fine and censure him.

(3) The Tribunal shall not impose a fine under subsection (2)(c) in any of the circumstances mentioned in subsection (1)(b).

(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, 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.

(7) Where in relation to any such order as is mentioned in subsection (6) the Tribunal give a direction under that subsection, 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.

54 Appeals from decisions of Tribunal

(1) Any person aggrieved by a decision of the Tribunal relating to discipline under this Act may within 21 days of the date on which the decision of the Tribunal is intimated to him, appeal against the decision to the Court, and on any such appeal 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; and the order of the Court shall be final.

(2) Where 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; 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.

The Court

55 Powers of Court

(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

(c) fine the solicitor; 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.

(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.

56 Saving for jurisdiction of courts

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

57 Admission and enrolment of solicitors as notaries public

(1) No person shall be admitted as a notary public unless he has been admitted and enrolled as a solicitor.

(2) Any solicitor 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 grant warrant to the keeper of the register of notaries public to register him in that register.

(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 and the fees to be paid on any application by a solicitor to be admitted a notary public may be prescribed by rules of court.

(5) There shall be paid to the clerk to the admission of notaries public in respect of the admission of any person as a notary public such fees as may be prescribed by rules of court.

58 Removal from and restoration to register of names of notaries public

(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 give notice of the striking off or removal to the keeper of the register of notaries public, who shall thereupon strike the person's name off, or, as the case may be, remove it from, that register.

(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, it shall be the duty of the Council forthwith to notify the said keeper accordingly; and the keeper shall thereupon restore the name to the register of notaries public.

59 Authority of notaries public to administer oaths, etc.

(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.

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

60 Offence for notaries public to act for unqualified persons

(1) Any notary public who upon the account or for the profit of any unqualified person—

(a) draws or prepares any writ to which section 32 applies; or

(b) permits or suffers his name to be made use of in the drawing or preparing of any such writ; or

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

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

(2) In this section " person " includes a body corporate.

PART VI Miscellaneous and General

Miscellaneous

61 Protection of banks

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

(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 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 as trustee for a specified beneficiary.

(3) Notwithstanding anything in the preceding provisions of this section a bank at which a solicitor keeps a special account for clients' money shall not, in respect of any liability of the solicitor to the bank (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.

62 Charge for expenses out of property recovered

(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

63 Penalties and time limit for prosecution of offences

(1) Any person guilty of an offence under this Act shall be liable on summary conviction to a fine not exceeding £100 and to imprisonment for a period not exceeding one month.

(2) Notwithstanding any provision of the [1975 c. 21.] 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.

64 Service of notices etc.

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.

65 Interpretation

(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);

• " advocate " means a member of the Faculty of Advocates;

• "client account" means a current or deposit or savings account, 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—

  (a)

  an account or deposit receipt for a client whose name is specified in the title of the account on deposit receipt, and

  (b)

  an account such as is mentioned in paragraphs (a) and (b) of section 35(1);

• " the Council " has the meaning given by section 3 ;

• " the Court" means the Court of Session;

• " functions " includes powers and duties ;

• " judge " includes sheriff ;

• " lay observer " has the meaning given by section 49 ;

• " Lord President " means the Lord President of the Court of Session;

• " 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;

• " the roll " has the meaning given by section 7 ;

• " the Society " has the meaning given by section 1;

• " 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.

(2) Unless the context otherwise requires a reference—

(a) in any enactment to law agents includes solicitors ;

(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 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 by 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.

66 Transitional and savings provisions, and repeals

(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 [1978 c. 30.] 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.

67 Citation, extent and commencement

(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.