Solicitors (Scotland) Act 1980

45 Safeguarding interests of clients of solicitor struck off or suspended. S

(1) The following provisions of this section [F1 (except subsection (4A))] 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 [F2 and, in relation to any incorporated practice, the recognition under section 34(1A) of which is revoked].

(2) [F3 In the case of a solicitor,] 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 [F3 or incorporated practice] 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.

[F4 (2A) In the case of an incorporated practice, it shall within 21 days of the material date satisfy the Council that it has made suitable arrangements for making available to its clients or to some other solicitor or solicitors or incorporated practice instructed by its clients or itself—

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

(b) all sums of money due from it or held by it on behalf of its clients or subject to any trust as aforesaid.]

[F5 (3A) If the solicitor or, as the case may be, the incorporated practice fails so to satisfy the Council, the Council may—

(a) require the production or delivery to any person appointed by them at a time and place fixed by them of the documents mentioned in subsection (3B);

(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 the solicitor or his firm or, as the case may be, the incorporated practice without the leave of the Court and the Court may make such order.

(3B) The documents are—

(a) all books, accounts, deeds, securities, papers and other documents in the possession or control of the solicitor or his firm or, as the case may be, the incorporated practice;

(b) all books, accounts, deeds, securities, papers and other documents relating to any trust of which the solicitor is a sole trustee or is a co-trustee only with one or more of his partners or employees or, as the case may be, of which the incorporated practice or one of its employees is a sole trustee or of which the practice is a co-trustee only with one or more of its employees.]

(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.

[F6 (4A) Where—

(a) a solicitor is restricted from acting as a principal; and

(b) immediately before the restriction the solicitor was a sole solicitor,

the right to operate on, or otherwise deal with, any client account in the name of the solicitor or the solicitor's firm shall on the occurrence of those circumstances vest in the Society (notwithstanding any enactment or rule of law to the contrary) to the exclusion of any other person until such time as the Council have approved acceptable other arrangements in respect of the client account.]

[F7 (4B) Part II of Schedule 3 has effect in relation to the powers of the Council under subsection (3A).]

(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 [F8 or, as the case may be, the recognition under section 34(1A) is revoked.] 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; F9 . . .

• [F10 “principal” means a solicitor who is a sole practitioner or is a partner in a firm of two or more solicitors or is a director of an incorporated practice which is a company or a solicitor who is a member of a multi-national practice having its principal place of business in Scotland;]

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

Textual Amendments

F1 Words in s. 45(1) inserted (23.11.2007) by Legal Profession and Legal Aid (Scotland) Act 2007 (asp 5), ss. 81, 82, Sch. 5 para. 1(15)(a) (with s. 77); S.S.I. 2007/497, art. 2

F2 Words inserted by Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73, SIF 76:2), s. 56, Sch. 1 Pt. I para. 23(a)

F3 Words inserted by Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73, SIF 76:2), s. 56, Sch. 1 Pt. I para. 23(b)

F4 S. 45(2A) inserted by Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73, SIF 76:2), s. 56, Sch. 1 Pt. I para. 23(c)

F5 S. 45(3A)(3B) substituted (23.11.2007) for s. 45(3) by Legal Profession and Legal Aid (Scotland) Act 2007 (asp 5), ss. 81, 82, Sch. 5 para. 1(15)(b) (with s. 77); S.S.I. 2007/497, art. 2

F6 S. 45(4A) inserted (23.11.2007) by Legal Profession and Legal Aid (Scotland) Act 2007 (asp 5), ss. 60(2)(a), 82 (with s. 77); S.S.I. 2007/497, art. 2

F7 S. 45(4B) inserted (23.11.2007) by Legal Profession and Legal Aid (Scotland) Act 2007 (asp 5), ss. 81, 82, Sch. 5 para. 1(15)(c) (with s. 77); S.S.I. 2007/497, art. 2

F8 Words inserted by Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73, SIF 76:2), s. 56, Sch. 1 Pt. I para. 23(e)

F9 Word in s. 45(5) repealed (23.11.2007) by Legal Profession and Legal Aid (Scotland) Act 2007 (asp 5), ss. 81, 82, Sch. 5 para. 1(15)(d) (with s. 77); S.S.I. 2007/497, art. 2

F10 S. 45(5): definition of "principal" inserted (23.11.2007) by Legal Profession and Legal Aid (Scotland) Act 2007 (asp 5), ss. 60(2)(b), 82 (with s. 77); S.S.I. 2007/497, art. 2

Modifications etc. (not altering text)

C1 S. 45 applied in part (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}