Solicitors (Scotland) Act 1980

40 Powers where failure to comply with accounts rules etc. S

(1) Where the Council are satisfied, in the case of any solicitor [F1 or incorporated practice], after enquiry and after giving the solicitor [F1 or, as the case may be, incorporated practice] an opportunity of being heard, that the solicitor [F1 or, as the case may be, incorporated practice][F2 has failed or] is failing to comply with any provisions of—

[F3 (za) rules made by virtue of section 34(1D),]

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

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

so far as applicable in his [F1 or, as the case may be, its] case (in this section referred to as “the applicable provisions”), the Council may, subject to the provisions of this section

[F4 (a)] withdraw the practising certificate held by the solicitor [F5 or, as the case may be—

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

and a certificate so withdrawn] shall thereupon cease to have effect and the solicitor shall be suspended from practice as a solicitor.

(2) On being satisfied by the solicitor that he [F6 or, as the case may be, by the incorporated practice that it] is able and willing to comply with the applicable provisions, the Council, unless they are of opinion that the solicitor [F6 or, as the case may be, the incorporated practice] is liable to disciplinary proceedings under Part IV, shall terminate the suspension from practice of the solicitor [F7 or solicitors concerned and shall restore to him or them any practicing certificate or certificates held by him or them for the practice year then current.]

(3) Within 21 days after receiving written notice of a decision of the Council under this section to withdraw his practising certificate, or to refuse to terminate his suspension from practice, the solicitor may appeal to the Court against [F8 a] decision; and on any such appeal the Court may give such directions in the matter, including directions as to the expenses of the proceedings before the Court, as it may think fit; and the order of the Court shall be final.

(4) Any withdrawal of a solicitor’s practising certificate by the Council in exercise of the power conferred by subsection (1) shall be without prejudice to the operation of [F9 section 34(4ZA),] section 35(3) or section 37(8).

[F10 (5) The Council shall notify the Commission of any case—

(a) where any of the following things occur—

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

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

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

(b) which does not involve a complaint remitted to the Council under section [F11 6(2)(a)] or 15(5)(a) of the 2007 Act.]

Textual Amendments

F1 Words inserted by Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73, SIF 76:2), s. 56, Sch. 1 Pt. I para. 18(a)

F2 Words inserted by Solicitors (Scotland) Act 1988 (c. 42, SIF 76:2), s. 6(1), Sch. 1 para. 12

F3 S. 40(1)(za) inserted (10.1.2019) by The Money Laundering and Terrorist Financing (Miscellaneous Amendments) Regulations 2018 (S.I. 2018/1337), regs. 1(2), 6(3)

F4 “(a)” inserted by Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73, SIF 76:2), s. 56, Sch. 1 Pt. I para. 18(a)

F5 Words substituted by Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73, SIF 76:2), s. 56, Sch. 1 Pt. I para. 18(a)

F6 Words inserted by Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73, SIF 76:2), s. 56, Sch. 1 Pt. I para. 18(b)

F7 Words substituted by Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73, SIF 76:2), s. 56, Sch. 1 Pt. I para. 18(b)

F8 Word substituted by Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73, SIF 76:2), s. 56, Sch. 1 Pt. I para. 18(c)

F9 Words in s. 40(4) inserted (10.1.2019) by The Money Laundering and Terrorist Financing (Miscellaneous Amendments) Regulations 2018 (S.I. 2018/1337), regs. 1(2), 6(4)

F10 S. 40(5) inserted (1.10.2008) by Legal Profession and Legal Aid (Scotland) Act 2007 (asp 5), ss. 81, 82, Sch. 5 para. 1(12) (with s. 77); S.S.I. 2008/311, art. 2

F11 Word in s. 40(5)(b) substituted (1.1.2015) by The Scottish Legal Complaints Commission (Modification of Duties and Powers) Regulations 2014 (S.S.I. 2014/232), regs. 1(2), 3(1) (with reg. 4)

Modifications etc. (not altering text)

C1 S. 40 applied (with modifications) (1.10.2004) by The Solicitors (Scotland) Act 1980 (Foreign Lawyers and Multi-national Practices) Regulations (S.S.I. 2004/383), {reg. 13}