House of Commons Hansard Debates for 25 Jul 1990

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services provided by him in connection with any matter in which he or his firm has been instructed by a client have, in any respect, not been of the quality which it is reasonable to expect of him as a licensed conveyancer.

(2) The Council shall not take any of the steps unless it is satisfied that in all the circumstances of the case it is appropriate to do so.

(3) In determining in any case whether it is appropriate to take any of the steps, the Council may--

(a) have regard to the existence of any remedy which it is reasonable to expect to be available to the client in civil proceedings ; and

(b) where proceedings seeking any such remedy have not been begun by him, have regard to whether it is reasonable to expect him to begin them.

(4) The Council's powers under this paragraph are exercisable in relation to a person who was, at the material time, a licensed conveyancer even though he is no longer a licensed conveyancer and references to a licensed conveyancer in this paragraph and paragraphs 15 to 20, so far as they relate to the exercise of those powers, shall be construed accordingly.

Inadequate professional services : steps that may be taken 15.--(1) The steps are--

(a) determining that the costs to which the licensed conveyancer is entitled in respect of his services ("the costs") are to be limited to such amount as may be specified in the determination and directing him to comply, or to secure compliance, with such one or more of the permitted requirements as appear to the Council to be necessary in order for effect to be given to its determination ;

(b) directing him to secure the rectification, at his expense or at that of his firm, of any such error, omission or other deficiency arising in connection with the matter in question as it may specify ;

(d) directing him to take, at his expense or at that of his firm, such other action in the interests of the client as it may specify. (2) The "permitted requirements" are--

(a) that the whole or part of any amount already paid by or on behalf of the client in respect of the costs be refunded ; (b) that the whole or part of the costs be remitted ;

(3) The power of the Council to take any such steps is not confined to cases where the client may have a cause of action against the licensed conveyancer for negligence.

Inadequate professional services : compensation

16.--(1) The amount specified in a direction by virtue of paragraph 15(1)(c) shall not exceed £1,000.

(2) The Lord Chancellor may by order made by statutory instrument amend sub -paragraph (1) by substituting for the sum of £1,000 such other sum as he considers appropriate.

(3) Before making any such order the Lord Chancellor shall consult the Council.

(4) Any statutory instrument made under this paragraph shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Inadequate professional services : failure to comply with direction

17.--(1) If a licensed conveyancer fails to comply with a direction given under this Part of this Schedule, any person may make a complaint in respect of that failure to the Discipline and Appeals Committee ; but no other proceedings whatever shall be brought in respect of it.

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(2) On the hearing of such a complaint the Discipline and Appeals Committee may, if it thinks fit (and whether or not it makes any order under section 26(2) of the Act of 1985), direct that the direction be treated, for the purpose of enforcement, as if it were contained in an order made by the High Court.

Inadequate professional services : fees

18.--(1) The Council may, by regulations made with the concurrence of the Lord Chancellor, make provision for the payment, by any client with respect to whom the Council is asked to consider whether to take any of the steps, of such fee as may be prescribed.

(2) The regulations may provide for the exemption of such classes of client as may be prescribed.

(3) Where a client pays the prescribed fee it shall be repaid to him if the Council takes any of the steps in the matter with respect to which the fee was paid.

(4) In this paragraph "prescribed" means prescribed by the regulations.

Inadequate professional services : costs

19. Where the Council takes any of the steps with respect to a licensed conveyancer it may also direct him to pay to the Council-- (a) the amount of the fee repayable by the Council to the client under paragraph 18(3) ; and

(b) an amount which is calculated by the Council as the cost to it of dealing with the complaint, or which in its opinion represents a reasonable contribution towards that cost.

Duty of Discipline and Appeals Committee

20. Where the Discipline and Appeals Committee--

(a) is considering, or has considered, an application or complaint with respect to a licensed conveyancer ; and

(b) is of the opinion that the Council should consider whether to take any of the steps with respect to that licensed conveyancer, it shall inform the Council.

Power to examine files

21.--(1) Where the Council is satisfied that it is necessary to do so for the purpose of investigating any complaint made to it-- (a) alleging professional misconduct by a licensed conveyancer ; or

(b) relating to the quality of any professional services provided by a licensed conveyancer,

the Council may give notice to the licensed conveyancer or his firm requiring the production or delivery to any person appointed by the Council, at a time and place to be fixed by the Council, of all documents in the possession of the licensed conveyancer or his firm in connection with the matters to which the complaint relates (whether or not they relate also to other matters).

(2) The provisions of paragraphs 9(2) to (12), 11 and 12 of Schedule 5 to the Act of 1985 shall apply in relation to the powers conferred by sub- paragraph (1) as they apply in relation to the powers conferred by paragraph 9(1) of that Schedule.

Interest on clients' money

22. Where a licensed conveyancer--

(a) is required by rules made under section 23 of the Act of 1985 to place any sum of money in a separate deposit account ; but (b) fails to do so as soon as is reasonably practicable, the Council may give a direction requiring him to account to the client in question for any interest which has not been earned but which would have been earned if that sum had been placed in a separate deposit account as soon as was reasonably practicable.

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Full and limited licences

23. In section 15 of the Act of 1985 (issue of licences by Council), the following subsections shall be added at the end

"(7) A licence issued under this Part may be endorsed by the Council as--

(a) a full licence, if the Council is satisfied that the person to whom it is issued has complied, or will comply, with the requirements made under this Part with respect to professional indemnity and compensation ; or

(b) as a limited licence, if the Council is not so satisfied. (8) Rules made under section 21 may make provision for the making, or removal, of endorsements while a licence is in force and for the recording of any such endorsement, or of its removal, in the register maintained under section 19."

Cases in which conditions may be attached to licences 24. In section 16(1) of the Act of 1985 (cases in which conditions may be attached to licences), the following shall be substituted for paragraph (i)--

"(i) after having been committed to prison in civil proceedings ; (ia) after having been convicted of an offence involving dishonesty or deception or a serious arrestable offence (as defined by section 116 of the Police and Criminal Evidence Act 1984) ; or".'.-- [The Attorney-General.]

Brought up, read the First and Second time, and added to the Bill.

New schedule

FOREIGN LAWYERS : PARTNERSHIPS AND RECOGNISED BODIES

--PART I

REGISTRATION

General

1. In this Schedule--

"the Act of 1974" means the Solicitors Act 1974 ;

"controlled trust" means, in relation to a registered foreign lawyer who is a member of a multi-national partnership, a trust of which he is a sole trustee or co-trustee only with one or more of the employees or other partners of that partnership and of which he is a trustee by virtue of his being a member of that partnership ; "the Council" means the Council of the Law Society ;

"the register" means the register maintained by the Society under section ( --Foreign lawyers : recognised bodies and partnerships with solicitors --) ;

"registration" means registration in that register ;

"the Society" means the Law Society ; and

"the Tribunal" means the Solicitors Disciplinary Tribunal. Application for registration

2.--(1) An application for registration or for renewal of registration--

(a) shall be made to the Society in such form as the Council may prescribe ; and

(b) shall be accompanied by such fee as the Council may, with the concurrence of the Master of the Rolls, prescribe.

(2) Where such an application is duly made by a foreign lawyer, the Law Society may register the applicant if it is satisfied that the legal profession of which the applicant is a member is one which is so regulated as to make it appropriate

(a) for solicitors to enter into multi-national partnerships with members of that profession ; and

(b) for members of that profession to be officers of recognised bodies.

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(3) Any registration may be made subject to such conditions as the Society sees fit to impose.

(4) The Council may make regulations, with the concurrence of the Master of the Rolls, with respect to--

(a) the keeping of the register (including the manner in which entries are to be made, altered or removed) ; and

(b) applications for registration or renewal of registration. (5) The register may be kept by means of a computer.

Duration of registration

3.--(1) Every registration shall have effect from the beginning of the day on which it is entered in the register.

(2) The Council may make regulations--

(a) prescribing the date ("the renewal date") by which each registered foreign lawyer must apply for his registration to be renewed ; and

(b) requiring every entry in the register to specify the renewal date applicable to that registration.

(3) Any such regulations may--

(a) provide different renewal dates for different categories of registered foreign lawyer or different circumstances ;

(b) provide for the Society to specify, in the case of individual registered foreign lawyers, different renewal dates to those prescribed by the regulations ;

(c) make such transitional, incidental and supplemental provision in connection with any provision for different renewal dates as the Council considers expedient.

(4) Where a foreign lawyer is registered, the Society may cancel his registration if--

(a) the renewal date for his registration has passed but he has not applied for it to be renewed ; or

(b) he has applied to the Society for it to be cancelled. Evidence as to registration

4. Any certificate purporting to be signed by an officer of the Society and stating that a particular foreign lawyer--

(a) is, or is not, registered ; or

(b) was registered during a period specified in the certificate, shall, unless the contrary is proved, be evidence of that fact and be taken to have been so signed.

PART II

--REGISTERED FOREIGN LAWYERS : SUPPLEMENTARY PROVISIONS

Intervention in practices

5.--(1) In this paragraph "the intervention powers" means the powers conferred by Part II of Schedule 1 to the Act of 1974 (intervention in solicitors' practices) as modified by this Schedule or under section ( -- Foreign lawyers : recognised bodies and partnerships with solicitors --).

(2) Subject to sub-paragraphs (3) and (4), the intervention powers shall be exercisable in relation to a person who is or has been a registered foreign lawyer and the practice of the multi-national partnership of which he is or was a member as they are exercisable in relation to a solicitor and his practice.

(3) The intervention powers are only exercisable where

(a) the Council have reason to suspect dishonesty on the part of the registered foreign lawyer, or on the part of an employee of the multi- national partnership, in connection with--

(i) the practice of that partnership ; or

(ii) any trust of which the registered foreign lawyer is or was a trustee by virtue of his being a member of that partnership ; (b) in the case of a registered foreign lawyer who has died, the Council have reason to suspect dishonesty on the part of his personal representative, in connection with--

(i) the practice of the multi-national partnership ; or

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(ii) any trust of which the registered foreign lawyer was a trustee by virtue of his being a member of that partnership ;

(c) the Council are satisfied that the registered foreign lawyer has failed to comply with rules made under section 32 or 37(2)(c) of the Act of 1974 ;

(d) a bankruptcy order (as defined in paragraph 10(3)) has been made against him or he has made a composition or arrangement with his creditors ;

(e) he has been committed to prison in any civil or criminal proceedings ;

(f) the powers conferred by section 98 (emergency powers) or 99 (appointment of receiver) of the Mental Health Act 1983 have been exercised in respect of him ;

(g) his name has been struck off the register or his registration has been suspended or cancelled ;

(h) he has purported to act as a member of a multi-national partnership at a time when he was not registered ;

(i) the Council are satisfied that he has failed to comply with any condition, subject to which he is registered, to the effect that-- (i) he may only be a member of a partnership which is approved by the Society ; or

(ii) he may only be an officer of a recognised body which is so approved ; or

(iii) he may only be such a member or such an officer.

(4) The intervention powers shall only be exercisable under sub-paragraph (3)(c) if the Society has given the foreign lawyer notice--

(a) that the Council are satisfied that he has failed to comply with rules specified in the notice ; and

(b) that the intervention powers are accordingly exercisable. (5) The intervention powers (other than those conferred by paragraphs 5 and 10 of Part II of Schedule 1 to the Act of 1974) shall also be exercisable where--

(a) a complaint is made to the Society that there has been undue delay on the part of a registered foreign lawyer in connection with-- (i) any matter in which he, or the multi-national partnership of which he is or was a member, was instructed on behalf of a client ; or

(ii) any controlled trust ;

(b) the Society by notice invites the registered foreign lawyer to give an explanation within a period (of not less than 8 days) specified in the notice ;

(c) the registered foreign lawyer fails within that period to give an explanation which the Council regard as satisfactory ; and (d) the Society gives notice of the failure to the registered foreign lawyer and notice that the intervention powers are accordingly exercisable.

(6) Where the intervention powers are exercisable in relation to a registered foreign lawyer, they shall continue to be exercisable-- (a) at any time when his registration is suspended ;

(b) after his name has been struck off the register or his registration has been cancelled ; or

(7) Part II of Schedule 1 to the Act of 1974 shall have effect in relation to the intervention powers exercisable by virtue of this Schedule, subject to--

(a) any express modifications made under section ( --Foreign lawyers : recognised bodies and partnerships with solicitors --) ; and

(b) any modifications necessary in the light of this paragraph. (8) For the purposes of this paragraph, Part II of Schedule 1 to the Act of 1974 shall be read with paragraph 4(2) of Part I of that Schedule.

(9) The notices required to be given by this paragraph must be in writing but need not be given at the same time.

The Compensation Fund

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