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Legal Services Bill [HL]


Legal Services Bill [HL]
Schedule 16 — The Law Society, solicitors, recognised bodies and foreign lawyers
Part 1 — The Solicitors Act 1974 (c. 47)

257

 

(15)   

This section is subject to any provision to the contrary made by or

under any enactment.”

67         

In section 80 (powers to act on behalf of Society)—

(a)   

in subsection (1) for “of any instrument made under it” substitute

“any other enactment (or of any instrument made under this Act or

5

any other enactment)”, and

(b)   

omit subsection (2).

68         

Omit sections 81 and 81A (administration of oaths and taking of affidavits).

69         

Before section 87 (interpretation) insert—

“86A    

Rules

10

(1)   

Rules made by the Society under this Act may —

(a)   

make provision generally or subject to exceptions or only in

relation to specified cases;

(b)   

make different provision for different cases or circumstances

or for different purposes.

15

(2)   

Without prejudice to the generality of subsection (1), any rules

prescribing a fee may provide for that fee to be reduced or waived in

such circumstances as may be specified in the rules.”

70         

In section 87(1) (interpretation)—

(a)   

in the definition of “client account”, for “in” to the end substitute

20

“subject to rules under section 32(1)(a)”, and

(b)   

omit the following definitions—

“articles”

“controlled trust”

“duly certificated notary public”

25

“employee”

“indemnity conditions”

“replacement date”

“training conditions”.

71         

In section 89 (consequential amendments etc.), omit subsection (7).

30

72    (1)  

Schedule 1 (intervention in solicitor’s practice) is amended as follows.

      (2)  

In paragraph 1 (grounds for intervention)—

(a)   

in sub-paragraph (1)(a)—

(i)   

for “Council have” substitute “Society has”, and

(ii)   

after “solicitor’s practice” insert “or former practice”,

35

(b)   

after that sub-paragraph insert—

“(aa)   

the Society has reason to suspect dishonesty on the

part of a solicitor (“S”) in connection with—

(i)   

the business of any person of whom S is or

was an employee, or of any body of which

40

S is or was a manager, or

(ii)   

any business which is or was carried on by

S as a sole trader;”,

(c)   

in sub-paragraph (1)(b)—

(i)   

for “Council consider” substitute “Society considers”, and

45

 

 

Legal Services Bill [HL]
Schedule 16 — The Law Society, solicitors, recognised bodies and foreign lawyers
Part 1 — The Solicitors Act 1974 (c. 47)

258

 

(ii)   

for “controlled trust” substitute “trust”,

(d)   

in sub-paragraph (1)(c) for “Council are” substitute “Society is”,

(e)   

in sub-paragraph (1)(ee)—

(i)   

for “Council are” substitute “Society is”, and

(ii)   

after “illness” insert “, injury”,

5

(f)   

in sub-paragraph (1)(h)—

(i)   

for “Council are” substitute “Society is”, and

(ii)   

omit “sole”,

(g)   

in sub-paragraph (1)(i) and (k) for “Council are” substitute “Society

is”,

10

(h)   

in sub-paragraph (1)(l)—

(i)   

for “Council are” substitute “Society is”,

(ii)   

in sub-paragraph (iii) for “an officer” substitute “a manager”,

and

(iii)   

in that sub-paragraph for “Council of the Law Society”

15

substitute “Society”,

(i)   

after sub-paragraph (1)(l) insert—

“(m)   

the Society is satisfied that it is necessary to exercise

the powers conferred by Part 2 of this Schedule (or

any of them) in relation to a solicitor to protect—

20

(i)   

the interests of clients (or former or

potential clients) of the solicitor or his firm,

or

(ii)   

the interests of the beneficiaries of any trust

of which the solicitor is or was a trustee.”,

25

(j)   

after sub-paragraph (1) insert—

   “(1A)  

In sub-paragraph (1) “manager” has the same meaning as

in the Legal Services Act 2007 (see section 208 of that Act).”,

and

(k)   

omit sub-paragraph (2).

30

      (3)  

In paragraph 3 (intervention following an undue delay)—

(a)   

for “10(3)” substitute “10(9)”,

(b)   

in paragraph (a)—

(i)   

for “a complaint is made to the Society” substitute “the

Society is satisfied”,

35

(ii)   

for “was instructed” substitute “is or was acting”, and

(iii)   

for “controlled trust” substitute “trust”, and

(c)   

in paragraph (c) for “Council regard” substitute “Society regards”.

      (4)  

In paragraph 4(2) (continuation of powers after death etc of solicitor)—

(a)   

after “6(2) and (3)” insert “, 6A”,

40

(b)   

for “and (5)” substitute “, (5) and (6)”, and

(c)   

for “10(1)” substitute “10(2) and (7)”.

      (5)  

In paragraph 6 (vesting of sums in Society)—

(a)   

in sub-paragraph (1)—

(i)   

for “Council pass” substitute “Society passes”,

45

(ii)   

for “Council’s” substitute “Society’s”, and

(iii)   

after “thereto” insert “and to rules under paragraph 6B”,

 

 

Legal Services Bill [HL]
Schedule 16 — The Law Society, solicitors, recognised bodies and foreign lawyers
Part 1 — The Solicitors Act 1974 (c. 47)

259

 

(b)   

in sub-paragraph (2)(a) after “practice” insert “or former practice”,

and

(c)   

in sub-paragraph (2)(c) for “to which the complaint relates”

substitute “in connection with which the Society is satisfied there has

been undue delay as mentioned in sub-paragraph (a) of that

5

paragraph”.

      (6)  

After paragraph 6 insert—

“6A   (1)  

Without prejudice to paragraph 5, if the Society passes a

resolution to the effect that any rights to which this paragraph

applies shall vest in the Society, those rights shall vest accordingly.

10

      (2)  

This paragraph applies to any right to recover or receive debts due

to the solicitor or his firm in connection with his practice or former

practice.

      (3)  

Any sums recovered by the Society by virtue of the exercise of

rights vested under sub-paragraph (1) shall vest in the Society and

15

shall be held by it on trust to exercise in relation to them the

powers conferred by this Part of this Schedule and, subject to those

powers and to rules under paragraph 6B, upon trust for the

persons beneficially entitled to them.

      (4)  

The Society shall serve on the solicitor or his firm, and any person

20

who owes a debt to which the order applies, a certified copy of the

Society’s resolution.

6B    (1)  

The Society may make rules governing its treatment of sums

vested in it under paragraph 6 or 6A(3).

      (2)  

The rules may in particular make provision in respect of cases

25

where the Society, having taken such steps to do so as are

reasonable in all the circumstances of the case, is unable to trace

the person or persons beneficially entitled to any sum vested in the

Society under paragraph 6 or 6A(3) (including provision which

requires amounts to be paid into or out of compensation funds

30

(within the meaning of section 36A)).”

      (7)  

In paragraph 7(1) (holding of sums vested in Society)—

(a)   

after “paragraph 6” insert “or 6A(3)”, and

(b)   

after “thereto” insert “and to rules under paragraph 6B”.

      (8)  

In paragraph 8 (information as to money held) for “holds money” to the end

35

substitute—

“(a)   

holds money on behalf of the solicitor or his firm, or

(b)   

has information which is relevant to identifying any

money held by or on behalf of the solicitor or his firm,

           

the court may require that person to give the Society information

40

as to any such money and the accounts in which it is held.”

      (9)  

In paragraph 9 (documents)—

(a)   

in sub-paragraph (1)(a)—

(i)   

after “possession” insert “or under the control”, and

(ii)   

for “or with any controlled trust” substitute “or former

45

practice or with any trust of which the solicitor is or was a

trustee”,

 

 

Legal Services Bill [HL]
Schedule 16 — The Law Society, solicitors, recognised bodies and foreign lawyers
Part 1 — The Solicitors Act 1974 (c. 47)

260

 

(b)   

in sub-paragraph (1)(b)—

(i)   

after “possession” insert “or under the control”, and

(ii)   

for “to which the complaint relates” substitute “of which the

Society is satisfied”,

(c)   

in sub-paragraph (3) after “possession” insert “or control”,

5

(d)   

in sub-paragraph (5) after “the possession” insert “or under the

control”,

(e)   

after sub-paragraph (5) insert—

   “(5A)  

In the case of a document which consists of information

which is stored in electronic form, a requirement imposed

10

by a notice under sub-paragraph (1) or an order under sub-

paragraph (4) or (5), is a requirement to produce or deliver

the information in a form in which it is legible or from

which it can readily be produced in a legible form.”,

(f)   

in sub-paragraph (6) after “possession of” insert “(a)”,

15

(g)   

at the end of that sub-paragraph insert—

“(b)   

any property—

(i)   

in the possession of or under the control of

the solicitor or his firm, or

(ii)   

in the case of an order under sub-paragraph

20

(5), which was in the possession or under

the control of such a person and has come

into the possession or under the control of

the person in respect of whom the order is

made,

25

   

which the Society reasonably requires for the

purpose of accessing information contained in such

documents,

           

and to use property obtained under paragraph (b) for that

purpose.”,

30

(h)   

in sub-paragraph (7) after “documents” insert “or other property”,

(i)   

in sub-paragraph (8) after “documents” insert “or other property”,

and

(j)   

in sub-paragraph (10) after “documents” insert “or other property”.

     (10)  

For paragraph 10 (mail) substitute—

35

“Mail and other forms of communication

10    (1)  

The High Court, on the application of the Society, may from time

to time make a communications redirection order.

      (2)  

A communications redirection order is an order that specified

communications to the solicitor or his firm are to be directed, in

40

accordance with the order, to the Society or any person appointed

by the Society.

      (3)  

For the purposes of this paragraph—

(a)   

“specified communications” means communications of

such description as are specified in the order;

45

(b)   

the descriptions of communications which may be so

specified include—

 

 

Legal Services Bill [HL]
Schedule 16 — The Law Society, solicitors, recognised bodies and foreign lawyers
Part 1 — The Solicitors Act 1974 (c. 47)

261

 

(i)   

communications in the form of a postal packet;

(ii)   

electronic communications;

(iii)   

communications by telephone.

      (4)  

A communications redirection order has effect for such time not

exceeding 18 months as is specified in the order.

5

      (5)  

Where a communications redirection order has effect, the Society

or the person appointed by the Society may take possession or

receipt of the communications redirected in accordance with the

order.

      (6)  

Where a communications redirection order is made, the Society

10

must pay to—

(a)   

in the case of an order relating to postal packets, the postal

operator concerned, and

(b)   

in any other case, the person specified in the order,

           

the like charges (if any) as would have been payable for the

15

redirection of the communications to which the order relates if the

addressee had permanently ceased to occupy or use the premises

or other destination of the communications and had applied to the

postal operator or the specified person (as the case may be) to

redirect the communications to him as mentioned in the order.

20

      (7)  

The High Court may, on the application of the Society, authorise

the Society, or a person appointed by it, to take such steps as may

be specified in the order in relation to any website purporting to

be or have been maintained by or on behalf of the solicitor or his

firm if the High Court is satisfied that the taking of those steps is

25

necessary to protect the public interest or the interests of clients (or

potential or former clients) of the solicitor or his firm.

      (8)  

In this paragraph—

“postal operator” has the meaning given by section 125(1) of

the Postal Services Act 2000;

30

“postal packet” has the meaning given by section 125(1) of the

Postal Services Act 2000.

      (9)  

This paragraph does not apply where the powers conferred by this

Part of this Schedule are exercisable by virtue of paragraph 3.”

     (11)  

In paragraph 11(1) (trusts) for “controlled trust” substitute “trust”.

35

     (12)  

In paragraph 12 (liens) for “and documents” substitute “, documents and

other property”.

     (13)  

After paragraph 13 (costs) insert—

“13A  (1)  

The High Court, on the application of the Society, may order a

former partner of the solicitor to pay a specified proportion of the

40

costs mentioned in paragraph 13.

      (2)  

The High Court may make an order under this paragraph only if

it is satisfied that the conduct (or any part of the conduct) by

reason of which the powers conferred by this Part were exercisable

in relation to the solicitor was conduct carried on with the consent

45

or connivance of, or was attributable to any neglect on the part of,

the former partner.

 

 

Legal Services Bill [HL]
Schedule 16 — The Law Society, solicitors, recognised bodies and foreign lawyers
Part 2 — The Administration of Justice Act 1985 (c. 61)

262

 

      (3)  

In this paragraph “specified” means specified in the order made

by the High Court.”

73         

Omit Schedule 1A (inadequate professional services).

74         

Omit Schedule 2 (the compensation fund).

Part 2

5

The Administration of Justice Act 1985 (c. 61)

75         

The Administration of Justice Act 1985 is amended in accordance with this

Part of this Schedule.

76    (1)  

Section 9 (incorporated practices) is amended as follows.

      (2)  

In subsection (1)—

10

(a)   

for “Council” (in both places) substitute “Society”,

(b)   

in paragraph (a) for “by solicitors” to the end substitute “of legal

services bodies;”,

(c)   

in paragraph (b) for “any such services” substitute “any solicitor

services or other relevant legal services”, and

15

(d)   

in paragraph (c)—

(i)   

for “conditions” substitute “requirements”, and

(ii)   

omit “corporate”.

      (3)  

In subsection (2)—

(a)   

for “Council” (in both places) substitute “Society”,

20

(b)   

in paragraph (a) for “are to be” to the end substitute “, or for the

renewal of such recognition, are to be made, and requiring such

applications to be accompanied by a fee of such amount as the

Society may from time to time determine;”,

(c)   

after that paragraph insert—

25

“(aa)   

for the manner and form in which other applications

under the rules are to be made, and requiring such

applications to be accompanied by a fee of such

amount as the Society may from time to time

determine;”,

30

(d)   

for paragraphs (c) to (e) substitute—

“(c)   

about the time when any recognition, or renewal of

recognition, takes effect and the period for which it is

(subject to the provisions made by or under this Part)

to remain in force;

35

(d)   

for the suspension or revocation of any such

recognition, on such grounds and in such

circumstances as may be prescribed by the rules;

(e)   

about the effect on the recognition of a partnership or

other unincorporated body (“the existing body”) of

40

any change in the membership of the existing body,

including provision for the existing body’s

recognition to be transferred where the existing body

ceases to exist and another body succeeds to the

whole or substantially the whole of its business;

45

 

 

Legal Services Bill [HL]
Schedule 16 — The Law Society, solicitors, recognised bodies and foreign lawyers
Part 2 — The Administration of Justice Act 1985 (c. 61)

263

 

(ea)   

for the keeping by the Society of a register containing

the names and places of business of all bodies which

are for the time being recognised under this section,

and such other information relating to those bodies as

may be specified in the rules;

5

(eb)   

for information (or information of a specified

description) on such a register to be made available to

the public, including provision about the manner in

which, and times at which, information is to be made

so available;”, and

10

(e)   

after paragraph (f) insert—

“(fa)   

about the education and training requirements to be

met by managers and employees of recognised

bodies;

(fb)   

for rules made under any provision of the 1974 Act to

15

have effect in relation to managers and employees of

recognised bodies with such additions, omissions or

other modifications as appear to the Society to be

necessary or expedient;”.

      (4)  

After subsection (2) insert—

20

“(2A)   

Where the Society decides to recognise a body under this section it

must grant that recognition subject to one or more conditions if—

(a)   

the case is of a kind prescribed for the purposes of this section

by rules made by the Society, and

(b)   

the Society considers that it is in the public interest to do so.

25

(2B)   

At any time while a body is recognised under this section the Society

may, in such circumstances as may be prescribed, direct that the

body’s recognition is to have effect subject to such conditions as the

Society may think fit.

   

“Prescribed” means prescribed by rules made by the Society.

30

(2C)   

The conditions which may be imposed under subsection (2A) or (2B)

include—

(a)   

conditions requiring the body to take specified steps that

will, in the opinion of the Society, be conducive to the

carrying on by the body of an efficient business;

35

(b)   

conditions which prohibit the body from taking any specified

steps except with the approval of the Society.

   

“Specified” means specified in the condition.

(2D)   

Rules made by the Society may make provision about when

conditions imposed under this section take effect (including

40

provision conferring power on the Society to direct that a condition

is not to have effect until the conclusion of any appeal in relation to

it).

(2E)   

Section 86A of the 1974 Act applies to rules under this section as it

applies to rules under that Act.

45

(2F)   

Rules under this section may contain such incidental, supplemental,

transitional or transitory provisions or savings as the Society

considers necessary or expedient.”

 

 

 
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