Solicitors (Scotland) Act 1988 (c. 42)

After section 42 of the M1 Solicitors (Scotland) Act 1980 (in this Act referred to as “ the 1980 Act ”) there shall be inserted the following sections— (1) Where— (a) the Council receive, from any person having an interest, a complaint 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 Council, after inquiry and after giving the solicitor an opportunity to make representations, uphold the complaint, they may take such of the steps mentioned in subsection (2) as they think fit. (2) The steps referred to in subsection (1) are—bv (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 Council may specify in the determination, and to direct the solicitor to comply, or secure compliance, with such of the requirements set out in subsection (3) as appear to them 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 Council may specify; (c) to direct the solicitor to take, at his own expense, such other action in the interests of the client as the Council 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 Council 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) The Council shall intimate a determination or direction made under this section to every solicitor specified in it by sending a copy of the determination or direction to him. (7) A solicitor in respect of whom a determination or direction has been made under this section may, within 21 days of the date on which the determination or direction is intimated to him, appeal to the Tribunal against the determination or direction. (8) In the foregoing provisions of this section— “ client ”, in relation to any matter in which a solicitor has been instructed, includes any person on whose behalf the person who gave the instructions was acting; “ complaint ” includes a complaint of provision of inadequate professional services remitted to the Council by the Tribunal under paragraph 8A of Schedule 4; and “ solicitor ” includes— (a) any solicitor, whether or not he had a practising certificate in force at the time of provision of the professional services which are alleged to be inadequate, and notwithstanding that subsequent to that time he has had his name removed from or struck off the roll, ceased to practise or been suspended from practice; (b) a firm of solicitors, whether or not, since the provision of the professional services which are alleged to be inadequate— (i) there has been any change in the firm by the addition of a new partner or the death or resignation of an existing partner; or (ii) the firm has ceased to practise; and (c) an incorporated practice, whether or not, since the provision of the professional services which are alleged to be inadequate— (i) there has been any change in the persons exercising the management and control of the practice; or (ii) the practice has ceased to be recognised by virtue of section 34(1A) or has been wound up.

After section 42B of the 1980 Act (inserted in that Act by the preceding section of this Act) there shall be inserted the following section— (1) Where the Council are satisfied that it is necessary for them to do so for the purpose of investigating a complaint made to them or remitted to them by the Tribunal alleging— (a) professional misconduct by a solicitor; (b) the failure of an incorporated practice to comply with any provision of this Act or of rules made under this Act applicable to that practice; or (c) the provision by a solicitor or an incorporated practice of inadequate professional services, the Council may give notice in writing in accordance with subsection (2) to the solicitor or his firm or to the incorporated practice or, where the solicitor is an employee of a firm or of an incorporated practice, to his employer. (2) A notice under subsection (1) may require— (a) the production or delivery to any person appointed by the Council, at a time and place specified in the notice, of all documents to which this section applies which are in the possession or control of the solicitor, firm or incorporated practice and relate to the matters to which the complaint relates (whether or not they relate also to other matters); and (b) an explanation, within such period, not being less than 21 days, as the notice may specify, from the solicitor, firm or incorporated practice regarding the matters to which the complaint relates. (3) This section applies to the documents specified in section 38(2). (4) Part II of Schedule 3 shall have effect in relation to the powers conferred by subsection (1) to require the production or delivery of documents as it has effect in relation to the powers conferred by section 38, but with the following modifications— (a) for the references in that Part to section 38 there shall be substituted references to this section; and (b) for the reference in paragraph 5(1) in that Part to a person failing to produce or deliver documents immediately on being required by the Council to do so there shall be substituted a reference to a person failing to produce or deliver the documents within the time specified in the notice under subsection (1) of this section. ”