Commentary on Sections Part 2 – Conduct Complaints: Other Matters Section 42ZA of the 1980 Act
101.New section 42ZA is inserted into the 1980 Act to provide that when a complaint of unsatisfactory professional conduct is remitted to the Council by the Commission under section 6(a) or 15(5)(a) of the Act, the Council must investigate the complaint and, having given the solicitor an opportunity to make representations, make a determination. In considering the complaint, the Council may take account of the outcome of any previous unsatisfactory professional conduct or professional misconduct complaint against the solicitor determined by it, the court or the Scottish Solicitors Discipline Tribunal. The Council must similarly investigate and determine (after giving the solicitor the opportunity to make representations) complaints remitted to it by the Scottish Solicitors Discipline Tribunal under new section 53ZA of the 1980 Act.
102.Where the Council upholds an unsatisfactory professional conduct complaint, it must censure the solicitor. The Council may also take any of the following steps which it considers appropriate: (a) where the Council considers that the solicitor does not have sufficient competence in relation to any aspect of the law or legal practice, direct the solicitor to undertake such education and training as regards the law or legal practice as it considers appropriate; (b) direct the solicitor to pay a fine not exceeding £2,000; and (c) where the Council considers that the complainer has been directly affected by the conduct, direct the solicitor to pay the complainer compensation of up to £5,000.
103.The Council may not direct payment of a fine where, in relation to the subject matter of the complaint, the solicitor has been convicted by any court of an act involving dishonesty and sentenced to a term of imprisonment of at least 2 years. This is akin to the double jeopardy rule. In any circumstances where a fine is applied, it will be treated as if it were a fine imposed in the High Court for the purposes of section 211(5) of the Criminal Procedure (Scotland) Act 1995 and will thus be payable to and recoverable by the Treasury.
104.The Council is required to intimate its determination and any direction or censure to both the complainer and the solicitor by sending them a copy. The Council must also give them reasons for its determination and any direction it makes.
105.The solicitor has a right of appeal to the Scottish Solicitors’ Discipline Tribunal against the Council’s determination or direction.
106.The complainer has a right to appeal to the Tribunal within 21 days against (a) a determination by the Council not to uphold the complaint , (b) a decision by the Council when upholding the complaint not to direct the solicitor to pay compensation, or (c) the amount of compensation which the Council has directed the solicitor to pay.