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Footnotes
1 A summary of the roles and responsibilities of the
Scottish Legal Services Ombudsman and the legal
professional bodies is at chapter 2.
2 The Committee's report was published on 27 November
2002 (
SP Paper 700) and is available at
http://www.scottish.parliament.uk/S1/official_report/cttee/just1-02/j1r02-11-vol01-01.htm. (The paragraph numbers in the version of
the report on the Parliament's website differ from those in
the printed report. This consultation paper refers
throughout to paragraph numbers in the printed report).
3 research carried out by the Scottish Consumer Council
(Complaints about Solicitors, 1999) and the Scottish
Executive (Survey of Complainers to the Scottish Legal
Services Ombudsman, 2000), and a survey by Which ? in
2004.
4 ie solicitors, advocates, conveyancing and executry
practitioners (regulated by the Law Society of Scotland),
registered European lawyers and registered foreign
lawyers.
5 Under section 1 of the Solicitors (Scotland) Act
1980.
6 Sections 34, 34A and 34B.
7 "professional services which are in any respect not of
the quality which could reasonably be expected of a
competent solicitor", as defined in Section 65 of the
Solicitors (Scotland) Act 1980.
8 "conduct which would be regarded by competent and
reputable solicitors as serious and reprehensible" as
applied in the case of Sharp v Council of the Law Society
of Scotland, 1984
SC 129 or 1984
SLT 313.
9 The recommendation is made in the report of Sir
David's review of the regulatory framework for legal
services in England and Wales which was published on 15
December 2004. The report is available at
http://www.legal-services-review.org.uk/content/report/index.htm.
10 paragraphs 62-65 of the Committee's report.
11 Text in italics accompanied by paragraph references
in brackets relate to recommendations made by the former
Justice 1 Committee, the references being to paragraphs in
the printed version of Volume 1 of the Committee's report (
SP Paper 700).
12 Approved by the Society's Council and endorsed at the
Society's Annual General Meeting on 18 March 2005, but
awaiting final approval at the time of going to print.
13 ie solicitors, advocates, registered European or
foreign lawyers, and conveyancing and executry
practitioners.
14 The gateway would also have the existing power of the
Scottish Legal Services Ombudsman to report any case to the
Scottish Solicitors' Discipline Tribunal where it appeared
that a solicitor or incorporated practice, registered
European or foreign lawyer or conveyancing and executry
practitioner, might have been guilty of professional
misconduct.
15 Clementi report, chapter B, paragraphs 49 to 52
16 under section 22(2) of the Courts and Legal Services
Act 1990.
17 Under section 34A(3) of the Law Reform (Miscellaneous
Provisions)(Scotland) Act 1990 the Ombudsman's
recommendations may provide that (a) the professional
organisation provide information to the complainant about
how the complaint was dealt with, (b) a complaint be
investigated further by the professional organisation, (c)
a complaint be reconsidered further by the professional
organisation, (d) the professional organisation consider
exercising their powers in relation to the practitioner
concerned, (e) the professional organisation pay
compensation of a specified amount to the complainant for
loss, inconvenience or distress, and (f) the professional
organisation reimburse the complainant's costs.
18 The Scottish Solicitors' Discipline Tribunal or the
Faculty of Advocates Disciplinary Tribunal.
19 See section 51 of the Solicitors (Scotland) Act
1980.
20 See section 33(1) of the Law Reform (Miscellaneous
Provisions)(Scotland) Act 1990 and section 42A(1) of the
Solicitors (Scotland) Act 1980.
21 Set out in the Solicitors (Scotland) Act 1980. (The
Faculty of Advocates distinguishes in practice between
cases of professional misconduct and
IPS but is not of course bound by the
1980 Act.)
22 Sharp v Council of the Law Society of Scotland, 1984
SC 129 or 1984
SLT 313.
23 subject to the provisos in section 56A(1) and (2) of
the Solicitors (Scotland) Act 1980.
24 Section 34A of the Law Reform (Miscellaneous
Provisions)(Scotland) Act 1990, inserted by the Scottish
Legal Services Ombudsman and Commissioner for Local
Administration in Scotland Act 1997.
25 by section 34A of the Law Reform (Miscellaneous
Provisions)(Scotland) Act 1990.
26 An open selection process is also followed to
identify lay members for appointment to the Faculty of
Advocates Complaints Committee and Disciplinary
Tribunal.
27 By virtue of Schedule 4, paragraph 4 of the
Solicitors (Scotland) Act 1980.
28 Lay members receive an attendance fee of £186 and a
preparation fee of £46.50 for each hearing which they
attend.
29 If members of the public suffer financial loss
because of a solicitor's dishonesty, a claim may be made
against the Scottish Solicitors Guarantee Fund, which is a
Fund contributed by the profession.
30 The Law Society of Scotland has the power under
section 44 of the Solicitors (Scotland) Act 1980 to provide
and to require solicitors to have professional indemnity
insurance and does so through the Solicitors (Scotland)
Professional Indemnity Insurance Rules 1995 and a master
policy scheme. The master policy provides cover in respect
of negligence claims, as well as indemnifying solicitors in
respect of claims arising out of any alleged dishonest,
fraudulent, criminal or malicious act or omission.
31 subject to the restraints placed on the legislative
competence of the Scottish Parliament by the Scotland Act
1998.
32 The relevant statute is section 51 of the Solicitors
(Scotland) Act 1980.
33 The qualification "without reasonable cause" would
allow for mitigating circumstances where a solicitor was in
poor health or under abnormal stress, because of family or
personal difficulties for example.
34 Suspension would be achieved by withdrawing the
solicitor's practising certificate and reinstating it once
the solicitor had complied. A solicitor would have a right
of appeal to the court against his suspension from
practice. There would be further detailed provision :
eg provision for continued practice by a
solicitor despite withdrawal of his practising certificate
to be treated as professional misconduct; a standard time
limit of 21 days to be set in statute for a solicitor to
respond to correspondence, with a discretion for the
Society to extend or waive the limit depending on the
complexity of the case in question; and a requirement for
the Society to notify suspension to the courts.
35 In cases which the Council considers it would not be
appropriate to prosecute before the Scottish Solicitors'
Discipline Tribunal
36 Section 54(1) of the Solicitors (Scotland) Act 1980,
as read with section 53D(3) of the 1980 Act, would
apply.
37 A notary public is a solicitor admitted as a notary
public by the Court of Session before whom affidavits and
other documents may be sworn, for the purpose for example
of giving information required by authorities in other
countries.
38 Approved by the Society's Council and endorsed at the
Society's Annual General Meeting on 18 March 2005, but
awaiting final approval at the time of going to print.
39 by virtue of section 34B of the Law Reform
(Miscellaneous Provisions)(Scotland) Act 1990.
40
http://www.scotland.gov.uk/consultations
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