294.Paragraph 9 amends the 1980 Act to make provision for conduct complaints remitted to the Council by section 6(2) of the 2007 Act (or treated as having been remitted to them under that section by virtue of section 33A(2) of that Act). The following paragraphs describe the changes made to the 1980 Act by paragraph 9.
295.Section 3A of the 1980 Act is amended to prevent conduct complaints remitted to the Council, or those treated as having been so remitted, from being determined by an individual.
296.Section 42ZA of the 1980 Act sets out the Council’s powers relating to conduct complaints suggesting unsatisfactory professional conduct. It has been amended to allow the Council (before it determines a conduct complaint) to propose a settlement to the solicitor and complainer, or to accept a proposal from a solicitor that it considers is fair and reasonable in the circumstances. If the settlement is accepted (by the solicitor or, as the case may be, the Council), then the Council must make a direction giving effect to it and may not determine the complaint unless the solicitor has failed to comply with the direction (or the direction is quashed on appeal).
297.Where a complaint is upheld, the Council may now provide that the censure is to have effect for a specified period (and must give reasons for doing so) and the Council may also impose conditions on the solicitor’s practising certificate (which may also be time-limited and the Council must give reasons for doing so).
298.The amendments also make provision for appeals as a result of the new decisions that can be made by the Council in section 42ZA. Section 42ZA has been adjusted to provide for the right of appeal to the Tribunal from decisions made by the Council relating to conduct complaints. Section 53ZB of the 1980 Act (which details the powers of the Tribunal on appeal, relating to unsatisfactory professional conduct) has been also adjusted to take account of the new appeals (for example the amendments allow the Tribunal to quash or confirm the decisions of the Council being appealed against) and also lists matters which the Tribunal may take into account in deciding whether to censure a solicitor for a specified period. And section 54A of the 1980 Act has been adjusted to enable an appeal to the Court of Session from those decisions of the Tribunal.
299.New section 53ZAA of the 1980 Act applies where the Tribunal has held an inquiry into a complaint of professional misconduct against a solicitor. If the Tribunal is not satisfied that the solicitor is guilty of professional misconduct, it is open for the Tribunal to instead make a finding of unsatisfactory professional conduct under new section 53ZAA(1). Where it does so, the Tribunal must censure the solicitor (and the censure may be for a specified period) and may direct the solicitor to undertake further education or training, may fine the solicitor or may order that the solicitor’s practising certificate is subject to conditions (and those conditions may be for a specified period). New section 53ZAA(7) lists matters which the Tribunal may take into account when deciding whether to censure a solicitor for a specified period. Where a censure or conditions are imposed for a specified period, the Tribunal must give its reasons for doing so. Section 54A of the 1980 Act has been amended to enable an appeal to the Court of Session from a direction or order made by the Tribunal under section 53ZAA.
Schedule 3 — Minor and Consequential Modifications of Enactments Conduct complaints suggesting unsatisfactory professional conduct