Solicitors (Scotland) Act 1980

Part IVS Complaints and Disciplinary Proceedings

Lay ObserverS

F149. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

The Scottish Solicitors’ Discipline TribunalS

50 The Tribunal.S

(1)For the purposes of this Part of this Act [F2and sections 16 to 23 (which relate to the provision of conveyancing and executry services) of the 1990 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.S

(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.

[F3(1A)In subsection (1) above, without prejudice to the generality of that subsection, the reference to a complaint includes a complaint in respect of conveyancing and executry practitioners and the provision by them of conveyancing and executry services (those expressions having the meanings given in section 23 of the 1990 Act).]

(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 [F4or against the Scottish Legal Aid Fund]) [F5or an incorporated practice may have failed to comply with any provision of this Act or of rules made under this Act applicable to it][F6or a solicitor or an incorporated practice may have provided inadequate professional services], and any such report shall be treated by the Tribunal as a complain under subsection (1).

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

(a)the Lord Advocate;

[F7(aa)the Advocate General for Scotland]

(b)any judge;

[F8(ba)the Dean of the Faculty of Advocates;]

(c)the Auditor of the Court of Session;

(d)the Auditor of any sheriff court.

[F9(e)the Scottish Legal Aid Board.]

[F10(f)the Scottish legal services ombudsman.]

[F11(4)Where a report is made to the Tribunal under subsection (2) the Tribunal may, if it thinks fit, appoint a solicitor to prosecute the complaint and the expenses of the solicitor, so far as not recoverable from the solicitor complained against, shall be paid out of the funds of the Tribunal.]

52 Procedure on complaints to Tribunal. S

(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 [F12or an incorporated practice].

(2)Subject to the other provisions of this Part [F13, the provisions of sections 16 to 23 of the 1990 Act], and of any rules 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

[F14(aa)for regulating the making, hearing and determining of appeals made to it under section 42A(7) or 53D(1);]

[F15(ab)for regulating the making, hearing and determining of—

(i)inquiries under subsection (2A) of section 20 of the 1990 Act; and

(ii)appeals under subsection (11)(b) of that section.]

(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.S

(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 [F16, or

(c)an incorporated practice has been convicted by any court of an offence, which conviction the Tribunal is satisfied renders it unsuitable to continue to be recognised under section 34(1A); or

(d)after holding an inquiry into a complaint, the Tribunal is satisfied that an incorporated practice has failed to comply with any provision of this Act or of rules made under this Act applicable to it.]

(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

[F17(ba)order that any right of audience held by the solicitor by virtue of section 25A be suspended or revoked;]

(c)subject to subsection (3), impose on the solicitor [F18or, as the case may be, the incorporated practice] a fine not exceeding [F19£10,000]; or

(d)censure the solicitor [F18or, as the case may be, the incorporated practice]; or

(e)impose such fine and censure him [F18or, as the case may be, it][F20or

(f)order that the recognition under section 34(1A) of the incorporated practice be revoked][F21; or

(g)order that an investment business certificate issued to a solicitor, a firm of solicitors or an incorporated practice be—

(i)suspended for such time as they may determine; or

(ii)subject to such terms and conditions as it may direct; or

(iii)revoked.]

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

[F22(3A)The powers conferred by subsection (2)(c), (d) and (e) may be exercised by the Tribunal—

(a)in relation to a former solicitor, notwithstanding that his name has been struck off the roll or that he has, since the date of the misconduct, conviction or sentence referred to in subsection (1)(a) or (b), ceased to practise as a solicitor or been suspended from practice;

(b)in relation to a body corporate which was formerly an incorporated practice, notwithstanding that the body has, since the date of the conviction or failure referred to in subsection (1)(c) or (d), ceased to be recognised as an incorporated practice by virtue of section 34(1A).]

[F23(3B)The power conferred by subsection (2)(ba) may be exercised by the Tribunal either independently of, or in conjunction with, any other power conferred by that subsection.]

(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 [F24or that any right of audience held by the solicitor by virtue of section 25A be suspended or revoked], 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.

[F25(6A)Where the Tribunal order that the recognition under section 34(1A) of an incorporated practice be revoked, the Tribunal shall direct that the order shall take effect on such date as the Tribunal specifies, being a date not earlier than 60 days after its order is intimated to the incorporated practice, and such an order shall take effect accordingly.]

[F26(6B)Where the Tribunal make an order under subsection (2)(g), they may direct that the order shall take effect on the date on which it is intimated to the solicitor, firm or incorporated practice; and if any such direction is given the order shall take effect accordingly.

(6C)The Council shall give effect to any order of the Tribunal under subsection (2)(g).]

(7)Where in relation to any such order as is mentioned in subsection (6) [F27,(6A) or (6B)] the Tribunal give a direction under [F28subsection (6) or, as the case may be, subsection (6A)][F29or (6B)], 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.

[F30(7A)In subsection (2)(g), section 53D(1) and paragraph 16(h) of Schedule 4, “investment business certificate” means a certificate issued by the Council under Rule 2.2 of the Solicitors (Scotland) (Conduct of Investment Business) Practice Rules 1988.]

[F31(8)The Secretary of State may, by order made by statutory instrument subject to annullment in pursuance of a resolution of either House of Parliament, amend [F32—

(a)]paragraph (c) of subsection (2) by substituting for the amount for the time being specified in that paragraph such other amount as appears to him to be justified by a change in the value of money.

[F33(b)the definition of “investment business certificate” in subsection (7A) by substituting for the reference to Rule 2.2 of the Solicitors (Scotland) (Conduct of Investment Business) Practice Rules 1988, or such reference replacing that reference as may for the time being be specified in that subsection, a reference to such Practice Rule as may from time to time replace Rule 2.2.]]

[F3553A Inadequate professional services: powers of Tribunal.S

(1)Subject to the other provisions of this Part where—

(a)a complaint is made to the Tribunal that professional services provided by a solicitor in connection with any matter in which he has been instructed by a client were inadequate; and

(b)the Tribunal, after inquiry and after giving the solicitor an opportunity to make representations, upholds the complaint,

it may take such of the steps mentioned in subsection (2) as it thinks fit.

(2)The steps referred to in subsection (1) are—

(a)to determine that the amount of the fees and outlays to which the solicitor shall be entitled for the services shall be—

(i)nil; or

(ii)such amount as the Tribunal may specify in the determination,

and by order direct the solicitor to comply, or secure compliance, with such of the requirements set out in subsection (3) as appear to it to be necessary to give effect to the determination;

(b)to direct the solicitor to secure the rectification at his own expense of any such error, omission or other deficiency arising in connection with the services as the Tribunal may specify;

[F36(ba)to order that any right of audience held by the solicitor by virtue of section 25A be suspended or revoked;]

(c)to direct the solicitor to take, at his own expense, such other action in the interests of the client as the Tribunal may specify.

[F37(d)to direct the solicitor to pay the client by way of compensation such sum, not exceeding [F38£5,000], as the Tribunal may specify.]

(3)The requirements referred to in subsection (2)(a) are—

(a)to refund, whether wholly or to any specified extent, any amount already paid by or on behalf of the client in respect of the fees and outlays of the solicitor in connection with the services;

(b)to waive, whether wholly or to any specified extent, the right to recover those fees and outlays.

(4)Before making a determination in accordance with subsection (2)(a) the Tribunal may submit the solicitor’s account for the fees and outlays to the Auditor of the Court of Session for taxation.

(5)Where a solicitor in respect of whom a complaint of inadequate professional services is made was, at the time when the services were provided, an employee of another solicitor, a direction under this section shall specify and apply to that other solicitor as well as the solicitor in respect of whom the complaint is made.

(6)A direction of the Tribunal under this section shall be enforceable in like manner as an extract registered decree arbitral in favour of the Council bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland.

(7)Section 54(1) shall apply to a direction of the Tribunal under this section (but not to a decision to submit an account for taxation under subsection (4)) as it applies to a decision of the Tribunal relating to discipline under this Act.

(8)In the foregoing provisions of this section “solicitor” and “client” have the same meanings as in section 42A(8).]

[F3953B Inadequate professional services: appeal to Tribunal against Council determination or direction.S

(1)On an appeal to the Tribunal under section 42A(7) the Tribunal may quash, confirm or vary the determination or direction being appealed against.

(2)Section 54(1) shall apply to a decision of the Tribunal under subsection (1) as it applies to a decision of the Tribunal relating to discipline under this Act.]

[F4053C Inadequate professional services: enforcement by Tribunal of Council direction.S

(1)Where a solicitor fails to comply with a direction given by the Council under section 42A (including, as the case may be, such a direction as confirmed or varied on appeal by the Tribunal or the Court) within the period specified in the notice relating to that direction given to the solicitor under section 42B(1), or such longer period as the Council may allow, the Council shall make a complaint to the Tribunal and may appoint a solicitor to represent them in connection with the complaint.

(2)If after inquiry into a complaint made under subsection (1) the Tribunal is satisfied that the solicitor has failed to comply with the direction the Tribunal may order that the direction, or such part of it as the Tribunal thinks fit, shall be enforceable in like manner as an extract registered decree arbitral in favour of the Council bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland.

(3)Paragraph 9 of Schedule 4 shall not apply to a complaint made under subsection (1).]

[F4153D Suspension etc. of investment business certificates: appeal to Tribunal.S

(1)Where, in accordance with rules made under this Act, the Council suspend or withdraw an investment business certificate or impose conditions or restrictions on it the solicitor, firm of solicitors or incorporated practice to whom it was issued may, within 21 days of the date of intimation of the decision of the Council, appeal to the Tribunal against that decision.

(2)On an appeal to the Tribunal under subsection (1) the Tribunal may quash, confirm or vary the decision being appealed against.

(3)Section 54(1) shall apply to a decision of the Tribunal under subsection (2) as it applies to a decision of the Tribunal relating to discipline under this Act.]

54 Appeals from decisions of Tribunal.S

(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 [F42that person], 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 Trinbunal relating to expenses; and the order of the Court shall be final.

(2)Where

[F43(a)]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 [F44;

(b)the Tribunal has ordered the revocation of the recognition under section 34(1A) of an incorporated practice, the incorporated practice may within 21 days of the date when the order is intimated to it apply to the court for an order varying (subject to the limit of 60 days referred to in subsection (6A) of section 53) the direction under that subsection;]

; 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 CourtS

55 Powers of CourtS

(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

[F46(ba)suspend the solicitor from exercising any right of audience held by him by virtue of section 25A for such period as the court may determine; or

(bb)revoke any right of audience so acquired by him; 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.

[F47(3A)A solicitor whose rights of audience under section 25A have been revoked in pursuance of an order made by the court under subsection (1) may apply to the court for an order restoring those rights, 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.S

Except as otherwise expressly provided, nothing in this Part shall affect the jurisdiction exercisable by the Court, or by any inferior court, over solicitors.

[F4956A Further provision as to compensation awards.S

(1)The taking of any steps under section 42A(2) or 53A(2) shall not be founded upon in any proceedings for the purpose of showing that the solicitor in respect of whom the steps were taken was negligent.

(2)A direction under section 42A(2)(d) or 53A(2)(d) to a solicitor to pay compensation to a client shall not prejudice any right of that client to take proceedings against that solicitor for damages in respect of any loss which he alleges he has suffered as a result of that solicitor’s negligence, and any sum directed to be paid to that client under either of those provisions may be taken into account in the computation of any award of damages made to him in any such proceedings.

(3)The Secretary of State may by order made by statutory instrument amend subsection (2)(d) of sections 42A and 53A by substituting for the sum for the time being specified in those provisions such other sum as he considers appropriate.

(4)Before making any such order the Secretary of State shall consult the Council.

(5)An order made under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.]