Schedule 4 Sections 50, 52
PART I - Constitution, Procedure and Powers of Tribunal
Constitution
“1 The Tribunal shall consist of not more than 28 members.
1A The Tribunal shall consist of equal numbers of—
(a) members (in this Part referred to as “solicitor members”) appointed by the Lord President, who are solicitors recommended by the Council as representatives of the solicitors' profession throughout Scotland; and
(b) members (in this Part referred to as “non-lawyer members”) appointed by the Lord President after consultation with the Scottish Ministers, who are not—
(i) solicitors;
(ii) advocates;
(iii) conveyancing practitioners or executry practitioners, within the meaning of section 23 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40) (“the 1990 Act”);
(iv) persons exercising a right to conduct litigation or a right of audience acquired by virtue of section 27 of the 1990 Act.
1B The validity of any proceedings of the Tribunal is not affected by a vacancy in membership of the Tribunal nor by any defect in the appointment of a member.
1C The Scottish Ministers may by order made by statutory instrument amend paragraph 1 so as to vary the maximum number of members of the Tribunal.
1D A statutory instrument containing an order made under paragraph 1C is subject to annulment in pursuance of a resolution of the Scottish Parliament.”.
(As amended by Section 58 of the Legal Profession and Legal Aid (Scotland) Act 2007 with effect from 1 November 2007)
2. Each member of the Tribunal shall retire from office on the expiry of 5 years from the date of his appointment, but in the case
(a) of a non-lawyer member, may be re-appointed by the Lord President after consultation with the Secretary of State; and
(b) of a solicitor member, may be re-appointed by the Lord President on the recommendation of the Council.
3. The Lord President may from time to time terminate the appointment of any member of the Tribunal, and may fill any vacancy therein by the appointment of a solicitor recommended by the Council or, as the case may be, after consultation with the Secretary of State, by the appointment of a non-lawyer member.
4. The Tribunal may appoint one of their number to be chairman, and may also appoint a clerk, who shall not be a member of the Tribunal, and, subject to the provisions of this Act, may regulate their procedure in such way as they may think fit.
5. The Tribunal shall be deemed to be property constituted if-
(a) at least 4 members are present, and
(b) at least 2 solicitor members are present, and
(c) at least 2 non-lawyer members are present.
6. There shall be paid to the non-lawyer members of the Tribunal out of money provided by Parliament such fees and allowances as the Secretary of State may determine.
PART II - PROCEDURE AND POWERS OF TRIBUNAL
Complaints
7. The making of a complaint to the Tribunal or the giving of any information in connection with a complaint shall confer qualified privilege.
8. A complaint made to the Tribunal shall not be withdrawn except with the Tribunal’s leave and subject to such conditions with respect to expenses or otherwise as the Tribunal thinks fit.
8A. Where a complaint is made to the Tribunal by a person other than—
(a) the Council; or
(b) a person mentioned in section 51(3),
the Tribunal may remit the complaint to the Council.
9. Subject to Part IV, the Tribunal may dismiss a complaint against a solicitor or an incorporated practice—
(a) without requiring the solicitor or the incorporated practice to answer the allegations made against him or, as the case may be, it or without holding any inquiry if—
(i) they are of the opinion that the complaint discloses no prima face case of professional misconduct on the part of the solicitor or, of failure on the part of the incorporated practice to comply with any provision of this Act or of rules made under this Act or, as the case may be, of provision of inadequate professional services; or
(ii) the complainer fails to comply with any rule made under section 52; or
(b) without hearing parties if they are of the opinion upon consideration of the complaint and other documents that they disclose no case of professional misconduct on the part of the solicitor or, of failure on the part of the incorporated practice to comply with any provision of this Act or of rules made under this Act or, as the case may be, of provision of inadequate professional services.
10. The Tribunal shall give notice of the complaint to the solicitor or incorporated practice against whom the complaint is made (“the respondent”) and shall inquire into the complaint, giving him or, as the case may be, it reasonable opportunity of making his or, as the case may be, its defence.
11. For the purpose of inquiring into the complaint the Tribunal may administer oaths and receive affirmations; and the complainer and respondent shall each be entitled—
(a) to require the evidence of parties, witnesses and others interested, and
(b) to call for and recover such evidence and documents, and examine such witnesses, as they think proper, but no person shall be compelled to produce any document which he could not be compelled to produce in an action.
12. On a petition by the complainer or the respondent to the court, or to the sheriff having jurisdiction in any place in which the respondent carries on business, the court or, as the case may be, the sheriff, on production of copies (certified by the clerk of the Tribunal) of the complaint and answers, if lodged; together with a statement signed by the clerk specifying the place and date of the hearing of the complaint and certifying that notice to that effect has been given to the complainer and to the respondent, and on being satisfied that it would be proper to compel the giving of evidence by any witness or the production of documents by any haver, may—
(a) grant warrant for the citation of witnesses and havers to give evidence or to produce documents before the Tribunal, and for the issue of letters of second diligence against any witness or haver failing to appear after due citation;
(b) grant warrant for the recovery of documents; and
(c) appoint commissioners to take the evidence of witnesses, to examine havers, and to receive exhibits and productions.
Decisions
13. The Tribunal shall set out in their decision—
(a) in the case of a complaint, the facts proved, and
(b) in the case of a conviction, particulars of the conviction and sentence,
and shall in the case of a complaint add to their decision a note stating the grounds on which the decision has been arrived at.
14. Every decision of the Tribunal shall be signed by the chairman or other person presiding and shall, subject to paragraph 14A, be published in full.
14A . In carrying out their duty under paragraph 14, the Tribunal may refrain from publishing any names, places or other facts the publication of which would, in their opinion, damage, or be likely to damage, the interests of persons other than—
(a) the solicitor against whom the complaint was made; or
(b) his partners; or
(c) his or their families,
but where they so refrain they shall publish their reasons for so doing.
15. A copy of every decision by the Tribunal certified by the clerk shall be sent forthwith by the clerk to the respondent and to the complainer intimating the right of appeal available from that decision under this Act.
16. In the case of a decision by the Tribunal—
(a) ordering a solicitor to be struck off the roll; or
(b) ordering a solicitor to be suspended from practice; or
(c) censuring a solicitor or an incorporated practice; or
(d) fining a solicitor or an incorporated practice; or,
(e) ordering that the recognition under section 34(1A) of an incorporated practice be revoked; or,
(f) containing a direction under section 53A or an order under section 53C(2); or
(g) confirming or varying a determination or direction of the Council on an appeal under section 42A(7); or
(h) ordering that an investment business certificate issued to a solicitor, a firm of solicitors or an incorporated practice be—
(i) suspended; or
(ii) subject to such terms and conditions as they may direct; or
(iii) revoked,
on the expiration of the days of appeal if any without an appeal being lodged or, where an appeal has been lodged, if and as soon as the appeal is withdrawn or a decision by the court is given in terms of subparagraphs (a) to (h) or in the case of a decision of the Tribunal under section 53(6) or (6B) which has not been varied or quashed by the court or under section 53(6A) which has not been varied by the court, the clerk of the Tribunal shall immediately send to the Council a copy of the decision of the Tribunal certified by him and a copy of the decision by the court in any appeal, and the Council shall forthwith give effect to any order as to striking the solicitor off the roll or as to revoking the recognition under section 34(1A) of an incorporated practice and to any terms and conditions directed by the Tribunal under section 53(5); and in any other case shall cause a note of the effect of the decision to be entered against the name of the solicitor in the roll.
17. The Council shall forthwith intimate any order striking a solicitor off the roll or suspending a solicitor from practice to each sheriff clerk and to the Principal Clerk of Session, and shall, without prejudice to paragraph 14, cause a notice of the operative part of the order to be published in the Edinburgh Gazette.
18. The file of orders under this Act striking solicitors off the roll, suspending solicitors from practice, or restoring persons to the roll shall be open for inspection at the office of the Society at any reasonable hour by any person without payment of any fee.
18A. Without prejudice to paragraph 18, the Council shall ensure that a copy of every decision published under paragraph 14 is open for inspection at the office of the Society during office hours by any person without payment of any fee.
Expenses
19. Subject to the provisions of Part IV, the Tribunal may make in relation to any complaint against a solicitor such order as it thinks fit as to the payment by the complainer or by the respondent of the expenses incurred by the other party and by the Tribunal or a reasonable contribution towards those expenses.
20. On the application of the person in whose favour an order for expenses under paragraph 19 is made and on production of a certificate by a clerk of the Tribunal that the days of appeal against the order have expired without an appeal being lodged or, where such an appeal has been lodged, that the appeal has been dismissed or withdrawn, the court may grant warrant authorising that person to recover his expenses from the person against whom the order was made.
21. Such warrant shall have effect for execution and for all other purposes as if it were an extracted decree of court awarded against the person against whom the order of the Tribunal was made.
22. The expenses of the Tribunal so far as not otherwise defrayed shall be paid by the Society as part of the expenses of the Society.
Appeals
23. The foregoing provisions of Part II of the Schedule shall apply in relation to an appeal to the Tribunal under section 42A(7) or section 53D(1) as they apply in relation to a complaint, but with the following modifications-
(a) for references to a complaint there shall be substituted references to an appeal;
(b) for references to the respondent there shall be substituted references to the appellant;
(c) paragraphs 8A, 9 and 10 shall not apply; and
(d) in paragraph 19 the words “against a solicitor” shall be omitted.
24. Subject to Part IV, the Tribunal may dismiss an appeal without holding an inquiry if-
(a) they are of the opinion that the appeal is manifestly ill founded; or
(b) the appellant fails to comply with any rule made under section 52.
25. The Tribunal shall give notice of the appeal to the person by whom the original complaint was made (referred to in this Schedule as “the complainer”) and the Council shall inquire into the matter, giving the appellant and the complainer reasonable opportunity to make representations to the Tribunal.
