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| |
| |
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| | (bb) | the suspension of that solicitor from practice as a sole |
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| | solicitor indefinitely or for a specified period;”,’. |
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| |
| |
| | Members’ explanatory statement
|
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| | This amendment allows a solicitor to apply to the Tribunal for a termination of a suspension |
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| | previously ordered by the Tribunal. This amendment also provides that on an application or |
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| | complaint under the Act, the Tribunal may revoke a sole solicitor endorsement, or suspend a |
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| | solicitor from sole practice. |
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| |
| | |
| Schedule 16, page 249, line 35, after ‘£5,000”,’ insert— |
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| | ‘( ) | after subsection (2)(e) insert— |
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| | “(ea) | the termination of that solicitor’s unspecified period |
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| | of suspension from practice as a sole solicitor;”, |
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| | ( ) | after subsection (2D) insert— |
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| | “(2E) | On the hearing of any complaint made to the Tribunal by |
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| | virtue of section 34A(2) or (3), the Tribunal shall have power |
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| | to make one or more of the following— |
|
| | (a) | an order directing the payment by the employee to |
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| | whom the complaint relates of a penalty to be |
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| | forfeited to Her Majesty; |
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| | (b) | an order requiring the Society to consider taking such |
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| | steps as the Tribunal may specify in relation to that |
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| | |
| | (c) | if that employee is not a solicitor, an order which |
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| | states one or more of the matters mentioned in |
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| | paragraphs (a) to (c) of section 43(2); |
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| | (d) | an order requiring the Society to refer to an |
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| | appropriate regulator any matter relating to the |
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| | conduct of that employee. |
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| | (2F) | Subsections (1) to (1C), (3) and (4) of section 44 apply in |
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| | relation to an order under subsection (2E)(c) as they apply in |
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| | relation to an order under section 43(2). |
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| | (2G) | Section 44(2), paragraph 16(1)(d) and (1A)(d) of Schedule 2 |
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| | to the Administration of Justice Act 1985 and paragraph |
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| | 15(3A) of Schedule 14 to the Courts and Legal Services Act |
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| | 1990 apply in relation to an order under subsection (2E)(c) as |
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| | they apply in relation to an order under section 43(2). |
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| | (2H) | For the purposes of subsection (2E)(d) an “appropriate |
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| | regulator” in relation to an employee means— |
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| | (a) | if the employee is an authorised person in relation to |
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| | a reserved legal activity (within the meaning of the |
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| | Legal Services Act 2007), any relevant approved |
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| | regulator (within the meaning of that Act) in relation |
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| | |
| | (b) | if the employee carries on activities which are not |
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| | reserved legal activities (within the meaning of that |
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| | Act), any body which regulates the carrying on of |
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| | such activities by the employee.”,’. |
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| |
| |
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| |
| |
| | Members’ explanatory statement
|
|
| | This amendment provides the Tribunal with certain order powers to accompany new application |
|
| | and complaints powers in relation to sole solicitor endorsements. This amendment also adapts the |
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| | application of certain statutory provisions for such orders. |
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| |
| | |
| Schedule 16, page 249, line 41, after ‘Tribunal)’, insert— |
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| | ‘(a) | in subsection (2)(b)— |
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| | (i) | after “(e),” insert “(ea),”, and |
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| | (ii) | omit “in the London Gazette”, and |
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| | |
| |
| |
| | Members’ explanatory statement
|
|
| | This amendment provides that the obligation for the Law Society to publish certain Tribunal orders |
|
| | under section 47 extends to decisions to suspend or revoke sole solicitor endorsements. It also |
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| | omits the specific need to publish section 47 decisions in the London Gazette. |
|
| |
| | |
| Schedule 16, page 249, line 42, at end insert ‘, and |
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| | (c) | after subsection (4) insert— |
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| | “(5) | In the case of orders of the Tribunal under section 44E, the |
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| | reference in subsection (2)(a) to the application or complaint |
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| | is to be read as a reference to the Tribunal’s order.”’. |
|
| |
| | Members’ explanatory statement
|
|
| | This amendment adds a new subsection (5) to section 48 of the Solicitors Act 1974. The subsection |
|
| | ensures that a note of a Tribunal order under new section 44E is entered on the solicitor’s roll. |
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| |
| | |
| Schedule 16, page 250, line 13, after ‘(e)’, insert ‘, (ea)’.
|
|
| |
| | Members’ explanatory statement
|
|
| | This amendment is related to amendment 79. It ensures that any decision of the High Court in |
|
| | relation to an appeal from a Tribunal order terminating a person’s suspension from sole practice |
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| | |
| |
| | |
| Schedule 16, page 251, line 20, after ‘(5)’, insert ‘— |
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| | |
| | |
| | Members’ explanatory statement
|
|
| | This is a paving amendment for amendment 85. |
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| |
| | |
| Schedule 16, page 251, line 23, at end insert ‘, and |
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|
|
| |
| |
|
| | (b) | in paragraph (d) after “solicitor” insert “, or any employee of his who |
|
| | is an authorised person,”. |
|
| | () | After that subsection insert— |
|
| | “(5A) | In subsection (5) “authorised person” means a person who is an |
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| | authorised person in relation to an activity which is a reserved legal |
|
| | activity, within the meaning of the Legal Services Act 2007 (see |
|
| | section 18 of that Act).”’. |
|
| |
| |
| | Members’ explanatory statement
|
|
| | This amendment provides that orders made under section 56 to regulate remuneration of solicitors |
|
| | for non-contentious business may take into account the skill, labour and responsibility that the |
|
| | business in question requires not only of solicitors, but also of employees of solicitors who are |
|
| | |
| |
| | |
| Schedule 16, page 251, line 43, leave out ‘negligence’ and insert ‘his negligence, |
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| or that of any employee of his,’.
|
|
| |
| | Members’ explanatory statement
|
|
| | This amends a prohibition on provisions in contentious agreements relieving a solicitor of |
|
| | responsibility for negligence, so that it also catches such provisions about the negligence of the |
|
| | |
| |
| | |
| Schedule 16, page 252, line 27, at end insert ‘, and |
|
| | (iii) | after “solicitor” (in the third place) insert “, or any of his |
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| | |
| |
| |
| | Members’ explanatory statement
|
|
| | This amendment provides that an assessment by a costs officer of the remuneration due to a |
|
| | solicitor in respect of previous work may take into account any default, negligence, delay or |
|
| | improper conduct on the part of a solicitor’s employees. |
|
| |
| | |
| Schedule 16, page 252, line 39, at end insert— |
|
| | ‘(d) | in paragraph (a), after “solicitor” insert “or an employee of the |
|
| | |
| | (e) | in paragraph (b), after “him” insert “or by any employee of his who is |
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| | an authorised person (within the meaning of section 56(5A))”.’. |
|
| |
| |
| | Members’ explanatory statement
|
|
| | This amendment provides that on an assessment of costs in respect of any contentious business, the |
|
| | costs officer may, in determining the remuneration of the solicitor, take into account the skill, |
|
| | labour and responsibility of not only the solicitor, but also employees of the solicitor who are |
|
| | |
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|
| |
| |
|
| |
| |
| |
| | |
| Schedule 16, page 252, line 44, leave out paragraph 59 and insert— |
|
| | ‘59 | In section 69 (action to recover solicitor’s costs)— |
|
| | (a) | in subsection (1) for “taxed” substitute “assessed”, |
|
| | (b) | for subsection (2) substitute— |
|
| | “(2) | The requirements referred to in subsection (1) are that the |
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| | |
| | |
| | (i) | by the solicitor, or on his behalf by any |
|
| | employee authorised by the solicitor to do so; |
|
| | (ii) | if the costs are due to a firm, by one of the |
|
| | partners of that firm, either in his own name |
|
| | or in the name of the firm, or on his behalf by |
|
| | any employee authorised by any partner to do |
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| | |
| | (iii) | be enclosed in, or accompanied by, a letter |
|
| | which is so signed and refers to the bill; |
|
| | (b) | must be delivered to the party to be charged with the |
|
| | |
| | |
| | (ii) | by being sent to him by post to, or left for him |
|
| | at, his place of business, dwelling-house, or |
|
| | last known place of abode; |
|
| | (iii) | (subject to subsection (2A)) where he has |
|
| | provided an e-mail address to the solicitor for |
|
| | that purpose, by being sent to him by e-mail |
|
| | to that address (and, if he required that any |
|
| | attachment to an e-mail be in any particular |
|
| | electronic format, in accordance with that |
|
| | |
| | (iv) | (subject to subsection (2A)) where he has |
|
| | provided a fax number to the solicitor for that |
|
| | purpose, by being sent to him by fax to that |
|
| | |
| | | where a bill is proved to have been delivered in |
|
| | compliance with those requirements, it shall not be |
|
| | necessary in the first instance for the solictor to prove |
|
| | the contents of the bill and it shall be presumed, until |
|
| | the contrary is shown, to be a bill bona fide complying |
|
| | |
| | (2A) | Sub-paragraph (iii) or (iv) of subsection (2)(b) does not apply |
|
| | if the party to be charged with the bill has indicated to the |
|
| | solicitor, before the bill is sent, that he is not willing to accept |
|
| | delivery of a bill sent by the method in question. |
|
| | (2B) | A bill which is sent by fax or e-mail is to be treated as having |
|
| | been delivered the working day after the day on which it was |
|
| | sent (unless the contrary is proved) and in this subsection |
|
| | “working day” means a day which is not a Saturday, Sunday, |
|
| | Bank Holiday or other public holiday,” and |
|
|
|
| |
| |
|
| | (c) | after subsection (3) insert— |
|
| | “(3A) | In subsection (2)(a) where a signature is required, an |
|
| | electronic signature incorporated into the document shall |
|
| | satisfy this requirement and an electronic signature is as much |
|
| | of anything in electronic form as |
|
| | (a) | is incorprated into or otherwise logically associated |
|
| | with any electronic communication or electronic data; |
|
| | |
| | (b) | purports to be so incorporated or associated for the |
|
| | purpose of being used in establishing the authenticity |
|
| | of the communication or data, the integrity of the |
|
| | communication or data, or both.”’. |
|
| |
| | |
| Schedule 16, page 257, line 21, after ‘32(1)(a)”,’ insert— |
|
| | ‘( ) | after the definition of “sole solicitor” insert— |
|
| | ““sole solicitor endorsement” has the same meaning as in section |
|
| | |
| |
| |
| | Members’ explanatory statement
|
|
| | This amendment adds a definition of “sole solicitor endorsement” to the interpretation provisions. |
|
| |
| |
| |
| | |
| Schedule 16, page 257, line 33, leave out paragraph (a) and insert— |
|
| | ‘(a) | for sub-paragraph (1)(a) substitute— |
|
| | “(a) | the Society has reason to suspect dishonesty on the part |
|
| | |
| | (aa) | after that sub-paragraph insert— |
|
| | “(aa) | the Society has reason to suspect dishonesty on the part |
|
| | |
| | (i) | an employee of a solicitor, or |
|
| | (ii) | the personal representatives of a deceased |
|
| | |
| | | in connection with that solicitor’s practice or in |
|
| | connection with any trust of which that solicitor is or |
|
| | formerly was a trustee;”,’. |
|
| |
| | |
| Schedule 16, page 257, line 35, at end insert— |
|
| | ‘( ) | after “trustee” insert “or that employee is or was a trustee in |
|
| | his capacity as such an employee”,’. |
|
| |
| |
| | Members’ explanatory statement
|
|
| | This amendment extends the circumstances in which the Law Society may intervene in a solicitor’s |
|
| | practice to cover suspected dishonesty in connection with any trust of which an employee of that |
|
| | solicitor is or was a trustee in his capacity as an employee. |
|
|
|
| |
| |
|
| |
| |
| |
| | |
| Schedule 16, page 258, line 8, at end insert— |
|
| | ‘(iii) | after “practice” insert “or has failed or is failing properly to |
|
| | attend to his practice”,’. |
|
| |
| | |
| Schedule 16, page 258, line 33, leave out paragraph (b) and insert— |
|
| | ‘(b) | for paragraph (a) substitute— |
|
| | “(a) | the Society is satisfied that there has been undue |
|
| | |
| | (i) | on the part of a solicitor in connection with |
|
| | any matter in which the solicitor or his |
|
| | firm is or was acting on behalf of a client |
|
| | |
| | (ii) | on the part of an employee of a solicitor in |
|
| | connection with any trust of which the |
|
| | employee is or was a trustee in his capacity |
|
| | as such an employee; and”,’. |
|
| |
| |
| | Members’ explanatory statement
|
|
| | This amendment extends the circumstances in which the Law Society may intervene in a solicitor’s |
|
| | practice to cover undue delay in connection with any trust of which an employee of that solicitor |
|
| | is or was a trustee in his capacity as an employee. |
|
| |
| | |
| Schedule 16, page 259, line 1, leave out paragraph (b) and insert— |
|
| | ‘(b) | in sub-paragraph (2)(a) for “his practice” to the end substitute— |
|
| | “(i) | his practice or former practice, |
|
| | (ii) | any trust of which he is or formerly was a |
|
| | |
| | (iii) | any trust of which a person who is or was |
|
| | an employee of the solicitor is or was a |
|
| | trustee in the person’s capacity as such an |
|
| | |
| |
| |
| | Members’ explanatory statement
|
|
| | This amendment extends the powers of the Law Society following intervention. Under paragraph |
|
| | 6 of Schedule 1 to the Solicitors Act 1974, sums of money can now vest in the Law Society where |
|
| | they are held by or on behalf of the solicitor in connection with the situations set out in this |
|
| | |
| |
| |
| |
| | |
| Schedule 16, page 262, line 18, at end insert— |
|
| | ‘( ) | in paragraph (d) omit “such”.’. |
|
|
|
| |
| |
|
| |
| |
| |
| | |
| Schedule 16, page 262, line 35, at end insert— |
|
| | ‘(ca) | for recognition to be made subject to such conditions as the Council at |
|
| | any time sees fit to impose in such circumstances as are specified in the |
|
| | |
| | (cb) | for the Society to require, in such circumstances as may be specified in |
|
| | the rules, recognised bodies to satisfy the Society as to their continuing |
|
| | suitability to be recognised under this section;’. |
|
| |
| |
| |
| | |
| Schedule 16, page 263, line 20, at end insert— |
|
| | ‘( ) | Rules made by the Council under subsection (1) and (2) may make different |
|
| | provision for different categories of person or body and for different |
|
| | |
| |
| |
| |
| | |
| Schedule 16, page 264, line 16, at end insert ‘and, if any such person is a body |
|
| corporate, it also includes a manager of that body corporate’. |
|
| |
| |
| |
| | |
| Schedule 16, page 264, line 21, at end insert— |
|
| | ‘“solicitor business” means a business consisting of or including solicitor |
|
| | |
| |
| |
| |
| | |
| Schedule 16, page 264, line 35, leave out paragraphs (a) and (b) and insert—
|
|
| ‘at least three-quarters of the partners are authorised persons or are registered foreign |
|
| lawyers, and any other partners do not directly provide services to clients.’.
|
|
| |
| | Members’ explanatory statement
|
|
| | See Members’ explanatory statement for amendment 259. |
|
| |
| |
| |
| | |
| Schedule 16, page 264, line 43, leave out paragraphs (a) and (b) and insert—
|
|
| ‘at least three-quarters of the members of the body are authorised persons or are registered |
|
| foreign lawyers, and any other members do not directly provide services to clients.’.
|
|
|