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Public Bill Committee: 21st June 2007                  

434

 

Legal Services Bill [Lords], continued

 
 

(a)    

in investigating the possible commission of an offence by the

 

solicitor or any employees of the solicitor, and

 

(b)    

in connection with any prosecution of the solicitor or any

 

employees of the solicitor consequent on the investigation.

 

(6)    

Where rules made under section 34 have effect in relation to

 

employees of solicitors by virtue of subsection (1), section 34(9) and

 

(10) apply in relation to such an employee as they apply in relation to

 

a solicitor.”’.

 


 

 

Members’ explanatory statement

 

This amendment gives the Law Society certain rule-making powers in relation to employees of sole

 

solicitors; adapts certain accounts rules provisions in relation to such employees; provides for

 

complaints to the Tribunal for certain breaches of these rules; and provides for disclosure of

 

employees’ accounts information in certain circumstances.

 

Bridget Prentice

 

65

 

Schedule  16,  page  242,  line  45,  at end insert—

 

‘(ia)    

no employee of a solicitor shall employ or

 

remunerate, in connection with the solicitor’s

 

practice, the person with respect to whom the order is

 

made,’.

 

 

Members’ explanatory statement

 

This amendment allows the Law Society or the Tribunal to make an order, on one or more of the

 

grounds set out in subsection (1), prohibiting an employee of a solicitor from employing or

 

remunerating a person who is the subject of that order.

 

Bridget Prentice

 

185

 

Schedule  16,  page  243,  line  45,  leave out ‘in shares’.

 

 

Members’ explanatory statement

 

This amendment is related to amendment 111. It adjusts the definition of interest in a recognised

 

body to refer to the definition of interest in a body in Clause 72 of the Bill, rather than the former

 

“interest in shares” in a body.

 

Bridget Prentice

 

66

 

Schedule  16,  page  244,  line  6,  after ‘solicitor’, insert ‘, or an employee of a

 

solicitor,’.

 

 

Members’ explanatory statement

 

This amendment is related to amendment 65. As a result of this change a person commits an

 

offence if he seeks or accepts employment or remuneration from not only a solicitor, but also an

 

employee of a solicitor, without previously informing the solicitor or employee (see amendment 67)

 

of the order.


 
 

Public Bill Committee: 21st June 2007                  

435

 

Legal Services Bill [Lords], continued

 
 

Bridget Prentice

 

67

 

Schedule  16,  page  244,  line  8,  after ‘solicitor’, insert ‘or employee’.

 

 

Members’ explanatory statement

 

This amendment is consequential on amendment 66.

 

Bridget Prentice

 

186

 

Schedule  16,  page  244,  line  38,  leave out ‘in shares’.

 

 

Members’ explanatory statement

 

This amendment is related to amendment 111. It adjusts the definition of interest in a recognised

 

body to refer to the definition of interest in a body in Clause 72 of the Bill, rather than the former

 

“interest in shares” in a body.

 

Bridget Prentice

 

187

 

Schedule  16,  page  245,  line  5,  leave out ‘in shares’.

 

 

Members’ explanatory statement

 

This amendment is related to amendment 111. It provides that section 44B applies to persons with

 

an interest in a recognised body, rather than persons with an interest in shares in a recognised

 

body. See also amendment 188.

 

Bridget Prentice

 

68

 

Schedule  16,  page  245,  line  11,  after ‘solicitor’, insert ‘or an employee of a

 

solicitor’.

 

 

Members’ explanatory statement

 

This amendment allows the Law Society to give notice under section 44B for the purpose of

 

ascertaining whether employees of sole solicitors have failed to comply with requirements imposed

 

by or by virtue of the Solicitors Act 1974 or rules by the Law Society.

 

Bridget Prentice

 

69

 

Schedule  16,  page  245,  line  38,  after ‘purpose’, insert ‘—

 

(a)    

’.

 


 

 

Members’ explanatory statement

 

This is a paving amendment for amendment 70.

 

Bridget Prentice

 

70

 

Schedule  16,  page  245,  line  49,  at end insert ‘, and

 

(b)    

the reference to the solicitor or his personal representative in paragraph

 

13 of that Schedule is to be construed as a reference to the person to

 

whom the notice was given under this section.”’.

 

 

Members’ explanatory statement

 

This amendment ensures that paragraph 13 of Schedule 1 to the Solicitors Act 1974 (payment of

 

Law Society’s costs) is applied with modifications for the purposes of enforcing the Law Society’s


 
 

Public Bill Committee: 21st June 2007                  

436

 

Legal Services Bill [Lords], continued

 
 

information powers.

 

Bridget Prentice

 

71

 

Schedule  16,  page  246,  line  15,  leave out ‘reference’ and insert ‘references’.

 

 

Members’ explanatory statement

 

This amendment, combined with amendment 72, ensures that paragraph 9(6) of Schedule 1 to the

 

Solicitors Act 1974 (powers of entry) applies with modifications for the purposes of enforcing the

 

Law Society’s information powers. The modification became necessary because paragraph 9 was

 

amended in the House of Lords (see paragraph 72(9)(g) of Schedule 16).

 

Bridget Prentice

 

72

 

Schedule  16,  page  246,  line  15,  after ‘9(5)’, insert ‘and (6)’.

 

 

Members’ explanatory statement

 

See explanatory statement for amendment 71.

 

Bridget Prentice

 

73

 

Schedule  16,  page  246,  line  22,  at end insert—

 

‘(7A)    

Where powers conferred by Part 2 of Schedule 1 to the 1974 Act are exercisable

 

in relation to a person within paragraph (a), (b), (c) or (d) of subsection (2), they

 

continue to be so exercisable after the person has ceased to be a person within the

 

paragraph in question.’.

 


 

 

Members’ explanatory statement

 

This amendment ensures that if a person to whom a notice requiring information is given ceases

 

after the notice is given to be a solicitor, solicitor’s employee, recognised body or employee or

 

manager of, or person with an interest in, a recognised body, the enforcement powers will

 

nonetheless remain available.

 

Bridget Prentice

 

188

 

Schedule  16,  page  246,  line  28,  leave out ‘in shares’.

 

 

Members’ explanatory statement

 

This amendment is related to amendments 111 and 187. It provides that an interest in a recognised

 

body (see amendment 187) has the same meaning as interest in a body in Clause 72 of the Bill.

 

Bridget Prentice

 

74

 

Schedule  16,  page  246,  line  41,  after ‘purpose’, insert ‘—

 

(a)    

’.

 


 

 

Members’ explanatory statement

 

This is a paving amendment for amendment 75.

 

Bridget Prentice

 

75

 

Schedule  16,  page  247,  line  2,  at end insert ‘, and


 
 

Public Bill Committee: 21st June 2007                  

437

 

Legal Services Bill [Lords], continued

 
 

(b)    

the reference to the solicitor or his personal representative in

 

paragraph 13 of that Schedule is to be construed as a reference to the

 

person to whom the notice was given under this section.”’.

 


 

 

Members’ explanatory statement

 

This amendment ensures that paragraph 13 of Schedule 1 to the Solicitors Act 1974 (payment of

 

Law Society’s costs) is applied with modifications for the purposes of enforcing the Law Society’s

 

information powers.

 

Bridget Prentice

 

76

 

Schedule  16,  page  247,  line  36,  at end insert ‘, and

 

(c)    

the reference to the solicitor or his personal representative in

 

paragraph 13 of that Schedule is to be construed as a reference to the

 

person to whom the notice was given under this section.’.

 


 

 

Members’ explanatory statement

 

This amendment ensures that paragraph 13 of Schedule 1 to the Solicitors Act 1974 (payment of

 

Law Society’s costs) is applied with modifications for the purposes of enforcing the Law Society’s

 

information powers.

 

Bridget Prentice

 

77

 

Schedule  16,  page  248,  line  39,  at end insert—

 

‘(5)    

This section (other than subsection (2)(a)) applies in relation to an

 

employee of a solicitor as it applies in relation to a solicitor.’.

 


 

 

Members’ explanatory statement

 

This amendment is related to amendment 68. It enables the Law Society to charge the costs of an

 

investigation into non-compliance with statutory requirements or rules to an employee of a sole

 

solicitor who is the subject of such an investigation.

 

Bridget Prentice

 

78

 

Schedule  16,  page  248,  line  39,  at end insert—

 

            

‘After that section insert—

 

“Disciplinary powers of the Society

 

44D    

Disciplinary powers of the Society

 

(1)    

This section applies where the Society is satisfied—

 

(a)    

that a solicitor or an employee of a solicitor has failed to

 

comply with a requirement imposed by or by virtue of this Act

 

or any rules made by the Society, or

 

(b)    

that there has been professional misconduct by a solicitor.

 

(2)    

The Society may do one or both of the following—

 

(a)    

give the person a written rebuke;

 

(b)    

direct the person to pay a penalty not exceeding £2,000.


 
 

Public Bill Committee: 21st June 2007                  

438

 

Legal Services Bill [Lords], continued

 
 

(3)    

The Society may publish details of any action it has taken under

 

subsection (2)(a) or (b), if it considers it to be in the public interest to

 

do so.

 

(4)    

Where the Society takes action against a person under subsection

 

(2)(b), or decides to publish under subsection (3) details of any action

 

taken under subsection (2)(a) or (b), it must notify the person in

 

writing that it has done so.

 

(5)    

A penalty imposed under subsection (2)(b) does not become payable

 

until—

 

(a)    

the end of the period during which an appeal against the

 

decision to impose the penalty, or the amount of the penalty,

 

may be made under section 44E, or

 

(b)    

if such an appeal is made, such time as it is determined or

 

withdrawn.

 

(6)    

The Society may not publish under subsection (3) details of any action

 

under subsection (2)(a) or (b)—

 

(a)    

during the period within which an appeal against—

 

(i)    

the decision to take the action,

 

(ii)    

in the case of action under subsection (2)(b), the

 

amount of the penalty, or

 

(iii)    

the decision to publish the details,

 

    

may be made under section 44E, or

 

(b)    

if such an appeal has been made, until such time as it is

 

determined or withdrawn.

 

(7)    

The Society must make rules—

 

(a)    

prescribing the circumstances in which the Society may

 

decide to take action under subsection (2)(a) or (b);

 

(b)    

about the practice and procedure to be followed by the Society

 

in relation to such action;

 

(c)    

governing the publication under subsection (3) of details of

 

action taken under subsection (2)(a) or (b);

 

    

and the Society may make such other rules in connection with the

 

exercise of its powers under this section as it considers appropriate.

 

(8)    

Before making rules under subsection (7), the Society must consult the

 

Tribunal.

 

(9)    

A penalty payable under this section may be recovered as a debt due

 

to the Society, and is to be forfeited to Her Majesty.

 

(10)    

The Lord Chancellor may, by order, amend paragraph (b) of

 

subsection (2) so as to substitute for the amount for the time being

 

specified in that paragraph such other amount as may be specified in

 

the order.

 

(11)    

Before making an order under subsection (10), the Lord Chancellor

 

must consult the Society.

 

(12)    

An order under subsection (10) is to be made by statutory instrument

 

subject to annulment in pursuance of a resolution of either House of

 

Parliament.


 
 

Public Bill Committee: 21st June 2007                  

439

 

Legal Services Bill [Lords], continued

 
 

(13)    

This section is without prejudice to any power conferred on the

 

Society or any other person to make an application or complaint to the

 

Tribunal.

 

44E    

Appeals against disciplinary action under section 44D

 

(1)    

A person may appeal against—

 

(a)    

a decision by the Society to rebuke that person under section

 

44D(2)(a) if a decision is also made to publish details of the

 

rebuke;

 

(b)    

a decision by the Society to impose a penalty on that person

 

under section 44D(2)(b) or the amount of that penalty;

 

(c)    

a decision by the Society to publish under section 44D(3)

 

details of any action taken against that person under section

 

44D(2)(a) or (b).

 

(2)    

Subsections (9)(b), (10)(a) and (b), (11) and (12) of section 46

 

(Tribunal rules about procedure for hearings etc) apply in relation to

 

appeals under this section as they apply in relation to applications or

 

complaints, except that subsection (11) of that section is to be read as

 

if for “the applicant” to “application)” there were substituted “any

 

party to the appeal”.

 

(3)    

Rules under section 46(9)(b) may, in particular, make provision about

 

the period during which an appeal under this section may be made.

 

(4)    

On an appeal under this section, the Tribunal has power to make such

 

order as it thinks fit, and such an order may in particular—

 

(a)    

affirm the decision of the Society;

 

(b)    

revoke the decision of the Society;

 

(c)    

in the case of a penalty imposed under section 44D(2)(b), vary

 

the amount of the penalty;

 

(d)    

in the case of a solicitor, contain provision for any of the

 

matters mentioned in paragraphs (a) to (d) of section 47(2);

 

(e)    

in the case of an employee of a solicitor, contain provision for

 

any of the matters mentioned in section 47(2E);

 

(f)    

make such provision as the Tribunal thinks fit as to payment

 

of costs.

 

(5)    

Where by virtue of subsection (4)(e) an order contains provision for

 

any of the matters mentioned in section 47(2E)(c), section 47(2F) and

 

(2G) apply as if the order had been made under section 47(2E)(c).

 

(6)    

An appeal from the Tribunal shall lie to the High Court, at the instance

 

of the Society or the person in respect of whom the order of the

 

Tribunal was made.

 

(7)    

The High Court shall have power to make such order on an appeal

 

under this section as it may think fit.

 

(8)    

Any decision of the High Court on an appeal under this section shall

 

be final.

 

(9)    

This section is without prejudice to any power conferred on the

 

Tribunal in connection with an application or complaint made to it.”’.

 


 


 
 

Public Bill Committee: 21st June 2007                  

440

 

Legal Services Bill [Lords], continued

 
 

Members’ explanatory statement

 

This amendment inserts new sections 44D and 44E into the Solicitors Act 1974 establishing a

 

procedure that allows the Law Society to rebuke or fine a solicitor where he has breached a

 

requirement of that Act or any rules made by the Society, or been found to have committed

 

professional misconduct.

 

Mr Jonathan Djanogly

 

Mr Henry Bellingham

 

Mr Tobias Ellwood

 

309

 

Schedule  16,  page  248,  line  39,  at end insert—

 

‘(2)    

After that section insert—

 

“44F  

Power for Society to rebuke and reprimand

 

(1)    

Where the Society has investigated whether there has been professional

 

misconduct by a solicitor, or whether a solicitor has failed to comply with

 

any requirement imposed by or by virtue of this Act or any rules made by

 

the Society, and the Society is satisfied that there was professional

 

misconduct on the part of the solicitor, or that the solicitor did fail to

 

comply with such a requirement or rule, but the Society is not satisfied

 

that it is in the public interest to make a complaint against the solicitor to

 

the Tribunal, the Society may rebuke or reprimand the solicitor and,

 

unless it considers that it is not in the public interest to do so, may make

 

public both the fact that the solicitor has been rebuked or reprimanded

 

and a summary of the misconduct or failure concerned.

 

(2)    

The Society may make rules providing for rights of appeal to the Tribunal

 

against rebukes or reprimands made by the Society where they are made,

 

or proposed to be made, public or in such other circumstances as the

 

Society may prescribe.

 

(3)    

Rules made under subsection (2) may also make provision about the

 

procedure and practice to be followed in relation to—

 

(a)    

investigations as to whether there has been professional

 

misconduct by a solicitor, or whether a solicitor has failed to

 

comply with any requirement imposed by or by virtue of this Act

 

or any rules made by the Council;

 

(b)    

the making of rebukes and reprimands; and

 

(c)    

the making public of rebukes and reprimands under subsection

 

(1).’.

 

Bridget Prentice

 

79

 

Schedule  16,  page  249,  line  34,  at end insert—

 

‘( )    

in subsection (1), after paragraph (e) insert—

 

“(ea)    

by a solicitor who has been suspended from practice

 

as a sole solicitor for an unspecified period, by order

 

of the Tribunal, for the termination of that

 

suspension;”,

 

( )    

in subsection (2) for “subsection” (where it first occurs) substitute

 

“subsections (2E) and”,

 

( )    

after subsection (2)(b) insert—

 

“(ba)    

the revocation of that solicitor’s sole solicitor

 

endorsement (if any);


 
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