Solicitors (Scotland) Act 1976



Solicitors (Scotland)Act 1976

1976 CHAPTER 6

An Act to make provision as to the powers of the Law Society of Scotland to intervene in the professional practice and conduct of solicitors; to make provision for the appointment of a lay observer to examine the Society's treatment of complaints about solicitors and the appointment of lay members of the Scottish Solicitors Discipline Tribunal; to extend the powers of that Tribunal; to make provision as to the indemnity of solicitors against professional liability; to amend the Solicitors (Scotland) Acts 1933 to 1965; and for connected purposes.

[25th March 1976]

Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

I Professional Practice and Conduct of Solicitors

Part I

Professional Practice and Conduct of Solicitors

Extension and alteration of power of Society to deal with property under the control of certain solicitors

Extension and alteration of power of Society to deal with property under the control of certain solicitors

S-1 Power of Council of Society to deal with property in hands of solicitor dying or ceasing to practise.

1 Power of Council of Society to deal with property in hands of solicitor dying or ceasing to practise.

1. Where a solicitor who is practising as a solicitor under his own name or as a sole solicitor under a firm name dies or ceases to practise for any reason other than being struck off the roll of solicitors or being suspended from practice and the Council of the Society 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 sole trustee or co-trustee only with one or more of his clerks or servants; 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 paragraphs 5 and 6 of Schedule 6 to the Act of 1949 (which relate to the production or delivery of documents by and to payments out of any bank account in the name of a solicitor in certain circumstances) shall apply in relation to any such 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 subsection (2) of section 22 of that Act.

S-2 Power of Society to deal with client accounts of solicitor incapacitated.

2 Power of Society to deal with client accounts of solicitor incapacitated.

(1) Where the Council of the Society are satisfied that a solicitor who is practising as a solicitor under his own name or as a sole solicitor under a firm name 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 name of the solicitor or his firm and no other arrangements acceptable to the Council have been made, the right to operate on or otherwise deal with such account shall notwithstanding any enactment or any rule of law to the contrary vest solely in the Society so long, but only so long as the Council are satisfied that such incapacity and absence of other acceptable arrangements continues.

(2) In this section ‘client account’ has the same meaning as in section 3 of the Act of 1965.

S-3 Society entitled to recover expenses incurred.

3. At the end of section 3 of the Act of 1965 (on death of a solicitor practising on his own account Society to deal with banking accounts of practice) the following subsection shall be inserted—

(3) In a case where the Society have operated on or otherwise dealt with a client account under this section 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.’

S-4 Extension of power of Council to apply for appointment of judicial factor on estate of solicitor.

4 Extension of power of Council to apply for appointment of judicial factor on estate of solicitor.

4. In section 15 of the Act of 1958 (power of Council to apply for appointment of judicial factor on estate of solicitor in certain cases) in paragraph (b ) the word ‘either’ shall be omitted and at the end of sub-paragraph (ii) there shall be inserted the word ‘or’ and the following sub-paragraph—

‘(iii) there is reasonable ground for apprehending that a claim on the Guarantee Fund may ensue,’.

S-5 Extension of power of Council to make rules regarding certain accounts.

5 Extension of power of Council to make rules regarding certain accounts.

(1) The duties to make rules imposed on the Council of the Society by section 20(1)(a ) of the Act of 1949 (Council of Society to make rules with respect to bank accounts etc.) shall be duties to make rules requiring solicitors to open and keep accounts only with the Bank of England, a Trustee Savings Bank within the meaning of section 95 of the Trustee Savings Bank Act 1969 , the National Savings Bank and any company as to which the Secretary of State is satisfied that it ought to be treated as a banking company or as a discount company for the purposes of the Protection of Depositors Act 1963 as amended by the Companies Act 1967 ; and the rules may specify the location of the banks' or companies' branches at which the accounts are to be kept.

(2) In section 20(1) of the Act of 1949 (Council of Society to make rules with respect to bank accounts etc.)—

(a ) after paragraph (a ) there shall be inserted the following paragraph—

‘(aa ) 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 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’.

(b ) at the end there shall be inserted the following—

‘In this subsection ‘local authority’ means a local authority within the meaning of the Local Government Act 1972 or the Local Government (Scotland) Act 1973’.

(3) Section 3(2) of the Act of 1965 shall have effect as if there were included in the meaning of client account a reference to the accounts mentioned in section 20 of the Act of 1949 as amended by subsections (1) and (2) above.

S-6 Power of Council in investigating complaints.

6 Power of Council in investigating complaints.

(1) If 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 co-trustee only with one or more of his partners, clerks or servants, and the Council are of opinion that the delay ought to be investigated, they may by notice in writing at any time and from time to time require the solicitor to give an explanation of the delay.

(2) The notice given by the Council may specify a period, not being less than twenty-one 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, the provisions of paragraphs 5 and 6 of Schedule 6 to the Act of 1949 (which relate to the production or delivery of documents by and to payments out of any banking account in the name of a solicitor or his firm in certain circumstances) shall apply in relation to that solicitor and his firm but only in so far as they relate to documents or payments connected with the matter complained of 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 subsection (2) of section 22 of that Act.

Lay observer

S-7 Investigation by lay observer of Society's treatment of complaints.

7 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’) 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) No solicitor or advocate shall be appointed as the lay observer.

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

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

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

(6) The Secretary of State may appoint staff for the lay observer.

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

(8) In determining the terms of employment and remuneration of the lay observer and his staff, the number of his staff and any amount payable by way of expenses under subsection (7) above the Secretary of State shall act only with the approval of the Minister for the Civil Service.

(9) The Society shall furnish the lay observer with such...

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