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Statutory Instruments of the Scottish Parliament |
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You are here: BAILII >> Databases >> Statutory Instruments of the Scottish Parliament >> Act of Sederunt (Sections 25 to 29 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990) (Association of Commercial Attorneys) 2009 No. 163 URL: http://www.bailii.org/scot/legis/num_reg/2009/ssi_20090163_en_1.html |
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Made
24th April 2009
Coming into force
20th May 2009
The Lord President of the Court of Session having under section 26(6)(a) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990(1) granted an application by the Association of Commercial Attorneys made under section 25(1) of that Act, the Lords of Council and Session, under and by virtue of the powers conferred by section 27(7)(a) of that Act, and of all other powers enabling them in that behalf, do hereby enact and declare:
1.-"(1) This Act of Sederunt-"
(a) may be cited as the Act of Sederunt (Sections 25 to 29 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990) (Association of Commercial Attorneys) 2009; and
(b) comes into force on 20th May 2009.
(2) This Act of Sederunt is to be inserted in the Books of Sederunt.
2. The scheme set out in the Schedule to this Act of Sederunt has effect.
A. C. HAMILTON
Lord President I.P.D.
Edinburgh
24th April 2009
Rule 2
| CONTENTS | |
| 1.0 | INTRODUCTION |
| 2.0 | DEFINITIONS |
| 3.0 | STATEMENT OF RIGHTS |
| 4.0 | MEMBERSHIP CATEGORIES |
| 5.0 | ENTRANCE REQUIREMENTS |
| 6.0 | INTERIM PRACTISING CERTIFICATE |
| 7.0 | PRATISING CERTIFICATES |
| 8.0 | TRANSITIONAL PERIOD |
| 9.0 | CONTINUING PROFESSIONAL DEVELOPMENT |
| 10.0 | CODE OF PRACTICE |
| 11.0 | COMPLAINTS PROCEDURE |
| 12.0 | ADMISSIONS BOARD |
| 13.0 | STATEMENTS |
| 1.0 | INTRODUCTION |
| 1.1 | This document contains the Association of Commercial Attorneys scheme as defined by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990. |
| 2.0 | DEFINITIONS |
| 2.1 | In the Membership Qualification Regulations, Qualification Courses, Education and Training, Rules of Conduct, Financial Rules and any other information and Rules which follow, words and expressions used have these meanings unless otherwise stated:-" |
| -�the Act-� the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990. | |
| -�The Association of Commercial Attorneys-� A company limited by Guarantee ref no. SC344543. | |
| -�Association members-�, includes -�members-� and -�fellows-� but excludes Associates of the Association. | |
| -�Attorney-� includes Associate, Member and Fellow of the Association. | |
| -�Client-� includes both professional client and lay client. | |
| -�Code of practice-� that required by section 25(2)(b)(ii) of the Act. | |
| -�Company-� a company incorporated by registration under the Companies Acts. | |
-�Construction matter-� means any of the following: (a)
a dispute (including a dispute concerning contractual obligations or delictual or other non-contractual liability) arising out of the design, procurement, planning processes, construction, supply and maintenance (but not conveyancing) of buildings, roads, bridges, architectural and landscaping systems and associated plant, equipment and materials, civil and structural engineering structures and associated plant, equipment and materials, mechanical engineering systems and associated plant, equipment and materials, electrical engineering systems and associated plant, equipment and materials, plumbing engineering systems and associated plant, equipment and materials, communication engineering systems and associated plant, equipment and materials, process engineering systems and associated plant, equipment and materials, power generation and transmission systems and associated plant, equipment and materials, any works altering, forming or to form part of the land; (b)
a dispute arising out of personal injuries or property damage sustained in relation to a construction site or operation; (c)
a dispute arising out of a cautionary obligation or a personal guarantee owed or given by an organization, company, partnership or individual engaged in a construction or construction related business; (d)
the insolvency of an organisation, company, partnership or individual engaged in a construction or construction related business; (e)
an arbitration arising out of a matter mentioned in any of paragraphs (a) to (c) above. |
|
| -�Construction Litigation-� means litigation arising out of a construction matter. | |
| -�Firm-� an unincorporated partnership of Member/Fellows including partnerships between Member/Fellows and others and includes Member/Fellows who are sole practitioners. | |
| -�Interim Practising Certificate-� certificate issued to individual Members/Fellows giving the rights of audience and the right to conduct litigation, subject to certain conditions. | |
| -�Practising Certificate-� certificate issued to individual Members/Fellows giving the rights of audience and the right to conduct litigation. | |
| -�Register-� a list, available on request to any member of the public, identifying if a member holds an interim or full practicing certificate. | |
| -�rights of audience-� and -�rights to conduct litigation-� are to be construed in accordance with the Act. | |
| 3.0 | STATEMENT OF RIGHTS |
| 3.1 | A Member pf the Association of Commercial Attorneys has the following rights:-" (a)
The right to conduct litigation in construction litigation in the sheriff court, including an appeal to the sheriff principal: (b)
In construction litigation in the sheriff court which the Member is conducting which is proceeding by way of a small claim or a summary cause, including an appeal to the sheriff principal, a right of audience; (c)
In construction litigation in the sheriff court which the Member is conducting which is proceeding by way of an undefended ordinary action, a right of audience in relation to a motion for decree or an appeal arising therefrom. |
| 4.0 | MEMBERSHIP CATEGORIES |
| 4.1 | Membership |
| 4.1.1 | The classes of membership shall be:-" a
Associate b
Member c
Fellow |
| 4.2 | a) Associate: An individual who does not meet the requirements of Member but who is seeking by education, training and/or experience to qualify as a Member of the Association of Commercial Attorneys. |
| 4.3 | b) Member: An individual qualified by education, training and/or experience to conduct litigation who has been granted a practising or interim practising certificate by the Association of Commercial Attorneys Admissions Board. |
| 4.4 | c) Fellow: An individual that is deemed (following application to the Admissions Board) to be a Member of standing and sufficient experience that can train and mentor others to become Members of the Association of Commercial Attorneys. A Fellow of the Association will be a Member with a minimum of three years experience. |
| 5.0 | ENTRANCE REQUIREMENTS |
| 5.1 | To become a Member of the Association of Commercial Attorneys the Admissions Board must be satisfied that the individual possesses a relevant legal qualification, a professional/construction qualification, relevant construction experience, relevant litigation experience and practical legal training. |
| 5.2 | Legal Qualification Requirements |
| 5.2.1 | Individuals wishing to become a Member will have to demonstrate to the Admissions Board that they have obtained a legal qualification. To meet this requirement one of the following will be required:-"
|
| 5.3 | Professional/Construction Qualification |
| 5.3.1 | To become a Member of the Association of Commercial Attorneys an individual must possess one of the following:-"
|
| 5.4 | Relevant Construction Experience |
| 5.4.1 | All individuals applying for membership must demonstrate, to the satisfaction of the Admissions Board, that they possess a broad range of construction experience. |
| 5.5 | Litigation Experience |
| 5.5.1 | To become a Member of the Association of Commercial Attorneys it must be demonstrated, to the satisfaction of the Admissions Board, that that the applicant has gained experience of the litigation process. The applicant will also have to demonstrate to the satisfaction of the Admissions Board that the individual continues to be involved with matters of litigation and/or the dispute sector. |
| 5.6 | Practical Legal Training |
| 5.6.1 | To become a Member of the Association of Commercial Attorneys it must be demonstrated, to the satisfaction of the Admissions Board, that the applicant has obtained practical experience and/or successfully completed training courses in all of the following areas (see Appendix 2 for course outline and requirements):-"
|
| 6.0 | INTERIM PRACTISING CERTIFICATE |
| 6.1.1 | On completion of the Entrance Requirements (noted at section 5.0 above) to the satisfaction of the Admissions Board the applicant be issued with an Interim Practising Certificate and allowed to use the title -�Member-�. The Interim Practising Certificate will be issued for a period of one year. During this period the Member will be supervised by a Fellow of the Association of Commercial Attorneys. The Admissions Board will assign the Fellow that will supervise the Member. If the Admissions Board is unable to allocate a Fellow to undertake the supervision then an Advocate/Solicitor shall be appointed. |
| 6.2 | The Association of Commercial Attorneys will add the successful applicant-�s name to the register of members. The member will be identified as holding an interim practicing certificate. The register will be made available to any member of the public on request. |
| 6.2.1 | The period of supervision is to ensure that the Member will be able carry out the rights defined in the scheme, as noted at section 3.0 above, to the standard expected by the Admissions Board and the Courts. |
| 6.2.2 | While in possession of an Interim Practising Certificate the Member must not carry out the following:-"
|
| 6.2.3 | Following the period of supervision the assigned Fellow will prepare a report for the Admissions Board with a recommendation in respect of the issuing of a Practising Certificate. During this period the Applications Board will extend the period of the Interim Certificate until a decision has been made on the application. The recommendation will be one of the following:-"
|
| 7.0 | PRACTISING CERTIFICATES |
| 7.1 | On completion of the Entrance Requirements and the period of supervision and subject to the approval of the Admissions Board the applicant will be issued with a Practising Certificate. |
| 7.2 | The Association of Commercial Attorneys will add the successful applicant-�s name to the register of members. The member will be identified as holding a practicing certificate. The register will be made available to any member of the public on request. |
| 7.3 | The Practising Certificate will remain valid and the person-�s name will remain on the register (subject to any disciplinary action) providing that the following is undertaken on a yearly basis:-"
|
| 7.4 | Practising Certificates can be withdrawn at any time by the Disciplinary Board of Association of Commercial Attorneys. |
| 8.0 | TRANSITIONAL PERIOD |
| 8.1 | A Transitional Period, as regards the issuing of Interim Practising Certificates and operation, will apply. The transitional period will last for a minimum period of three years. The transitional period will terminate after the three year period provided the number of registered Members with -�Practicing Certificates-� reaches 50 in number. At this stage the scheme will be reviewed by the Lord President and the Scottish Ministers. At this review, the Lord President and the Scottish Ministers may:-" (a)
withdraw approval of the scheme; (b)
terminate the transition period; (c)
extend the transition period. In this situation, the extension will terminate at the new review date or at the date when the number of registered members with practicing certificates reaches 50 in number, whichever is the sooner. |
| 8.2 | Interim Practising Certificate |
| 8.2.1 | On completion of the Entrance Requirements (noted at section 5.0 above) to the satisfaction of the Admissions Board the applicant will be issued with an Interim Practising Certificate and allowed to use the title -�Member-�. The Interim Practising Certificate will be issued for a period of one year. |
| 8.2.2 | While in possession of an Interim Practising Certificate the Attorney must not carry out the following:-" Ordinary Cause Actions
|
| 8.2.3 | Prior to expiry of the Interim Certificate the Member may apply to the Admissions Board for a Practising Certificate. If the Member applies for a Practising Certificate the Applications Board will extend the period of the Interim Certificate until a decision has been made on the application. The applicant is to provide documentary evidence substantiating experience gained in drafting and preparing a writ and appearing in Court. If the Admissions Board is satisfied that the member has gained relevant experience it will prepare and submit a report to the Lord President seeking his approval that it issues a Practising Certificate as described at paragraph 7.0 above. If the Admissions Board is not satisfied that the Member has gained relevant experience a further Interim Practising Certificate may be issued with the restrictions noted at paragraph 8.2.2 above. |
| 8.2.4 | Only two interim certificates will be issued to each applicant. Thereafter, the applicant must wait for a period of two years before re-applying for an Interim Certificate. |
| 8.3 | Admissions Board |
| 8.3.1 | The Admissions Board during the Transitional Period shall comprise of six persons, of whom two will be Associates/Members of the Association and a minimum of four of whom will be non-affiliated members of the Association. During the Transitional Period one of the non-affiliated members will be a Patent Agent with Litigator Rights in England the other will be Solicitor or an Advocate. All appointments to the Admissions Board will require the approval of the Lord President. |
| 8.3.2 | A maximum of 10 Interim Practising Certificates will be issued by the Admissions Board during the first year of the Transitional Period. |
| 8.4 | Disciplinary Board |
| 8.4.1 | The Disciplinary Board during the Transitional Period shall comprise seven persons, of whom five will be Associates/Members of the Association and two of whom will be non-affiliated members of the Association. During the Transitional Period one of the non-affiliated members will be a Patent Agent with Litigator Rights in England the other will be Solicitor or an Advocate. If a complaint is about an Attorney that is a member of the Complaints or Appeals panel that person must not sit on the panel. If the complaint is about the Head of the Complaints Board the Chairman or Vice Chairman of the Association of Commercial Attorneys must assume the role of Head of the Complaints Board. |
| 8.5 | Fellows |
| 8.5.1 | During the Transitional Period a Member can apply to become a Fellow having been in the possession of a Practicing Certificate for a period of two years. During the Transitional Period no Fellow can undertake supervision of a Member with an Interim Practising Certificate. |
| 9.0 | CONTINUING PROFESSIONAL DEVELOPMENT |
| 9.1 | It will be a requirement of Members/Fellows holding Practising Certificates that they follow the structured Continuing Professional Development (CPD) plan as laid down by the Association of Commercial Attorneys. The plan will require members to undertake a minimum of 20 hours per year of Continual Professional Development, 10 hours of which must be in subjects/topics relevant to the work of the Association of Commercial Attorneys. |
| 9.2 | Members/Fellows that hold Practising Certificates will be required to provide, on a yearly basis, details of the CPD undertaken. |
| 9.3 | The Continued Professional Development requirements will be reviewed and monitored by the Admissions Board of the Association. |
| 10.0 | CODE OF PRACTICE |
| 10.1 | Introduction |
| 10.2 | Generally |
| 10.3 | Professional Conduct |
| 10.4 | Conduct of litigation |
| 10.6 | Withdrawing of a Member/Fellows Services |
| 10.7 | Costs, fees and payment |
| 10.8 | Conflict of interest |
| 10.9 | Confidentiality |
| 10.10 | Below standard professional work and negligence |
| 10.11 | Professional Indemnity Insurance |
| 10.12 | Advertising and Publicity |
| 10.13 | Relations with the Faculty of Advocates and Solicitor Advocates |
| 10.14 | Complaints against Individuals |
| 10.15 | Client-�s Money |
| 10.16 | Member/Fellows in private practice |
| 10.17 | Employed Member/Fellows |
| 10.1 | Introduction |
| 10.1.1 | The Code of Practice outlines the standards required of all classes of membership (Attorney) of the Association of Commercial Attorneys, in relation to their exercise of rights acquired under the Act. |
| 10.1.2 | If an Attorney is unclear in respect of the requirements of the Code of Practice then advice should be sought from the Association of Commercial Attorneys for clarification of the requirements. |
| 10.1.3 | The Code of Practice is established to meet the requirements of section 25(2)(b)(ii) of the Act. |
| 10.1.4 | The Rules of Conduct have been drafted with regard to section 26(2) of the Act. |
| 10.2 | Generally |
| 10.2.1 | An Attorney is responsible for work carried out and shall conduct him/herself in a professional manner. An Attorney must exercise personal judgment in all professional activities. |
| 10.2.2 | An Attorney must not conduct him/herself, whether in pursuit of their profession or otherwise, in a manner which is:-" (i)
dishonest or otherwise discreditable or; (ii)
prejudicial to the administration of justice or; (iii)
likely to diminish public confidence in the Association of Commercial Attorneys, the legal profession or the administration of justice or otherwise bring the Association of Commercial Attorneys or any section of the legal profession into disrepute. |
| 10.2.3 | Attorneys must not discriminate on grounds of race, ethnic origin, sex, religion or political persuasion. |
| 10.3 | Professional Conduct |
| 10.3.1 | Attorneys shall act in accordance with the following principles:-" (i)
that the client has the freedom to instruct an appropriate professional of his choice; (ii)
where an Attorney is approached, with regard to accepting instructions in a matter, the Attorney shall explain to the client whether he/she is qualified to do the work. The Attorney must offer to provide the client with written advice as to the alternatives available and the appropriateness of using any particular route as well as informing the client with regard to any difference in the level of Professional Indemnity insurance in comparison with Solicitors; (iii)
The Attorney is to make the client aware that he/she is bound by the Complaints Procedure of the Association. In addition the Attorney is to make the client aware of the right to refer matters of complaint to the Scottish Legal Complaints Commission and to provide a written copy of the complaints procedure on request; (iv)
that the Attorney is independent and may decide whether to accept instructions or not according to his own judgment; (v)
that the Attorney has a duty to act in the best interests of the client; (vi)
that the Attorney shall accept instructions and continue to act only where the client can be represented competently and diligently with the exercise of reasonable care and skill (and see 10.10 below); (vii)
the primary duty of an Attorney is to the client; (viii)
an Attorney has an overriding duty to the Court to ensure in the public interest that the proper and efficient administration of justice is achieved. The Attorney must assist the Court in the administration of justice and must not deceive or knowingly or recklessly mislead the Court; (ix)
that the Attorney shall exercise judgment before accepting instructions where it is known that a third person has stipulated that the particular Attorney shall act; (v)
where instructions are received from a third party the Attorney should seek instructions from the client; (xi)
that an Attorney shall not act or shall cease to act further where the instructions would involve the Attorney in a breach of the law or of this Code of Conduct. However, the Attorney may continue to act if the client changes his instructions appropriately; (xii)
that an Attorney shall not act or shall cease to act further, where there is a conflict of interest between himself/herself, or his/her firm or his/her employer and the client or prospective client, or between two existing clients or between an existing client or former client and a prospective client (and see 10.8 below); (xiii)
that an Attorney must not accept instructions to act in a matter where another Association Attorney is acting for the client in the same matter, until either the first retainer has been determined by the client, or the first Association Attorney has consented to the Attorney acting in his place; (xiv)
that an Attorney will keep the client-�s business and affairs confidential (and see 10.9 below); (xv)
that an Attorney is under a duty to keep the client properly informed and to comply with reasonable requests from the client for information concerning the matters entrusted to the Attorney; (xvi)
that an Attorney is under a duty to consider and advise a client on the availability of legal aid where the client might be entitled to assistance. |
| 10.4 | Conduct of Litigation |
| 10.4.1 | Attorneys must not in carrying out his duties or in instructing Counsel devise information that is presented as fact to advance the client-�s case and must not draft any statement of claim, pleading, affidavit, witness statement or notice of appeal containing:-" (i)
any statement of fact or contention which is not supported by his client or by his/her instructions; (ii)
any contention which the attorney does not consider to be properly arguable; (iii)
any allegation of fraud unless he/she has clear instructions to make such allegation and has before him/herself an extract of conviction which as it stands establishes a prima facie case of fraud; (iv)
in the case of an affidavit or witness statement, any statement of fact other than the evidence which in substance according to his instructions the Attorney reasonably believes the witness would give if the evidence contained in the affidavit or witness statement were being given orally. |
| 10.5 | The Attorney in drafting (notwithstanding items 10.4.1 (i)-" (iv) noted above) a pleading, affidavit or witness statement containing specific facts, matters or contentions must only do so following confirmation (from the Client or otherwise) as to their accuracy. |
| 10.6 | Withdrawal of an Attorney-�s services |
| 10.6.1 | An Attorney shall not withdraw his services and cease to act for a client except for good reason and upon reasonable notice. |
| 10.6.2 | On withdrawing services the Attorney must, subject to any lien, deliver to the client all papers and property to which the client is entitled or hold them to the client-�s order. |
| 10.6.3 | Attorneys shall consider whether it is appropriate to seek the agreement of the court to the withdrawal of the Attorney-�s services. |
| 10.7 | Costs, fees and payment |
| 10.7.1 | In all matters the Attorney must consider with the client whether the likely outcome will justify the likely cost or risk involved. |
| 10.7.2 | When confirming acceptance of the client-�s instructions the Attorney shall state the basis of the fees to be charged. The Attorney shall in so far as reasonably possible provide the client orally and in writing with an estimate of likely costs and of the costs of alternatives available (see 10.3.1(ii) above). |
| 10.7.3 | The Attorney may, at the outset of accepting instructions, require the client to make a payment on account of costs and disbursements to be incurred and may agree at any time appropriate arrangements for further payments on account of costs and disbursements to be incurred and for periodic settlement of sums due. |
| 10.7.4 | Unless there is an agreement to the contrary, an Attorney is personally responsible for paying the proper costs of Counsel, any professional agent or other person instructed by him on behalf of the client whether or not he receives payment from the client. |
| 10.8 | Conflict of interest |
| 10.8.1 | An Attorney shall not act or shall cease to act further, where there is a conflict of interest between him/herself, or his/her firm or his/her employer and the client or prospective client, or between two existing clients or between an existing client or former client and a prospective client. In instances where an Attorney considers that no conflict of interest exists but that there may be the perception that one may or could exist then the Client should be notified of all the relevant details. |
| 10.8.2 | If an Attorney acquired relevant knowledge concerning a former client when acting for him, the Attorney shall not accept instructions to act against the former client. |
| 10.9 | Confidentiality |
| 10.9.1 | The duty upon an Attorney to keep confidential the client-�s affairs extends to ensuring that the Attorney-�s partners, directors and employees also observe that duty. |
| 10.9.2 | The duty to keep confidential the client-�s affairs applies irrespective of the source of the information. |
| 10.9.3 | The duty to keep confidential the client-�s affairs continues until the client permits disclosure or waives the confidentiality. |
| 10.10 | Below standard professional work and negligence |
| 10.10.1 | All Attorneys are under a duty to represent the client competently and diligently with the exercise of reasonable care and skill, and to keep the client properly informed. |
| 10.10.2 | Complaints from clients which allege breach of the duty in 10.10.1 shall be dealt with properly and promptly by the Attorney. For situations where the complaint is not resolved to the client-�s reasonable satisfaction see section 11.0 below. |
| 10.10.3 | If the client makes a claim against an Attorney or notifies the intention of doing so, or if the Attorney discovers an act or omission which would justify such a claim, the Attorney is under a duty to inform the client that he should seek independent advice. |
| 10.10.4 | Attorneys must notify clients in writing that the Association of Commercial Attorneys operates a Complaints Handling Procedure. This information may be conveyed by inclusion in the Attorney-�s terms and conditions. |
| 10.10.5 | The Attorney is under a duty to inform the Client of the existence of the Scottish Legal Complaints Commission and his rights to use this body. |
| 10.11 | Professional Indemnity Insurance |
| 10.11. | Attorneys, when engaged in activities covered by these Rules, shall carry indemnity insurance against loss arising from claims as described in the Association-�s approved policy:-"
|
| 10.11.2 | The form of the indemnity insurance, including level of indemnity, will be as prescribed by the Association. |
| 10.11.3 | Attorneys must inform clients of the level and extent of Professional Indemnity Insurance held. |
| 10.12 | Advertising and Publicity |
| 10.12.1 | Attorneys may engage in any advertising or promotion in connection with his/her activities (or that of a firm or company the Attorney is involved with) provided that it conforms to the British Code of Advertising Practice. |
| 10.12.2 | Associate Members of the Association are prohibited from engaging in any advertising or promotion that may infer that the Attorney can conduct litigation or has rights of audience. |
| 10.12.3 | Advertising and publicity must not be likely to diminish public confidence in the Association of Commercial Attorneys, the legal profession or the administration of justice and must not otherwise bring the Association or the legal profession into disrepute. |
| 10.13 | Relations with the Faculty of Advocates, Solicitor Advocates, Law Society |
| 10.13.1 | Attorneys shall at all times conduct themselves in a professional manner with officers of the court and all branches of the legal profession. |
| 10.13.2 | All Attorneys shall be aware of the requirements of the current edition of the appropriate Code of Conduct issued by the Faculty of Advocates, Solicitor Advocates body or the Law Society. |
| 10.13.3 | In instructing Counsel, Solicitor Advocates, or Solicitors, it is the Attorney-�s duty to provide the necessary instructions and supporting documents in good time. |
| 10.13.4 | Where Counsel, Solicitor Advocate, or a Solicitor is instructed this does not affect the Attorney-�s responsibility to the client for the conduct of the matter. |
| 10.13.5 | When the proper conduct of the matter so requires the Attorney shall arrange conferences between Client and Counsel, Solicitor Advocate or Solicitor. |
| 10.13.6 | Where an Attorney instructs Counsel, Solicitor Advocate or a Solicitor that Attorney shall be present throughout court proceedings. |
| 10.13.7 | Where Counsel, a Solicitor Advocate or a Solicitor is instructed the Attorney is personally liable for the payment of the proper fees of whether or not the Attorney has been paid by the client. |
| 10.14 | Complaints against Attorneys |
| 10.14.1 | The Association has established a Complaints Procedure to investigate complaints of professional misconduct and inadequate professional services against Attorneys and where appropriate to discipline Attorneys. |
| 10.15 | Client-�s Money |
| 10.15.1 | Attorneys shall not handle Client-�s Money. The Attorney must inform the Client that in respect of payment from Defenders or payment to Pursuers that the money is to be paid directly to or from the Client and not through the Attorney. Payment of fees and expenses on behalf of the Client is not deemed to fall under the heading of -�Client-�s Money-�. |
| 10.15.2 | Attorneys must take all reasonable steps to ensure that their practice or that of their firm is efficiently and properly administered and that proper records are kept. |
| 10.16 | Attorneys working in Private Practice Partnerships/Limited Liability Partnership |
| 10.16.1 | Attorneys in a firm may practise providing that the Attorney ensures that his partner(s) conducts business in a manner to enable compliance with the Code of Practice. |
| 10.17 | Employed Attorneys (including Company Directors) |
| 10.17.1 | Employed Attorneys may conduct litigation on instruction from their employer to act on behalf of his/her employer-�s clients. The Attorney may also conduct litigation on instruction from their employer on his/her employer-�s behalf. Once instructed the Attorney must undertake the work on his/her account and must not instruct others to carry out the work on his/her behalf. If the Attorney receives assistance from any other person he is deemed to have carried out the work on his/her own account. |
| 10.17.2 | When in the employment of others, the Attorney must ensure that his/her employer conducts business in a manner to enable compliance with the Code of Practice. |
| 10.17.3 | When in the employment of others, the Attorney must ensure that his Employer-�s client is made fully aware of the Association of Commercial Attorney-�s complaint procedure and the right to refer matters of complaint about to the Scottish Legal Complaints Commission. |
| 11.0 | COMPLAINTS PROCEDURE |
| 11.1 | Introduction |
| 11.1.1 | The Association recognises that there may be complaints by clients, members of the public and other Attorneys of the Association against Attorneys in relation to their professional activities under the Rules of the Association. |
| 11.1.2 | In addition to the complaints procedure outlined in this scheme, the Association will comply with the statutory requirements of the Legal Profession and Legal Aid (Scotland) Act 2007. |
| 11.1.3 | By the Rules of Conduct of the Association all Attorneys are under a duty to represent the client competently and diligently with the exercise of reasonable care and skill, and to keep the client properly informed (Rule 10.10.1). Attorneys are required to deal properly and promptly with complaints which allege breach of the duty in Rule 10.10.1 (Rule 10.10.2). |
| 11.1.4 | It is a purpose of this procedure to provide for situations where a complaint is not resolved to the client-�s reasonable satisfaction. The procedure will also be implemented where a complaint has been referred to the Association by the Legal Complaints Commission in respect of a matter of conduct. |
| 11.1.5 | The Complaints Procedure is described below. |
| 11.2 | Association Complaints Board |
| 11.2.1 | General. |
| 11.2.2 | The Association will set up this Board to investigate complaints against Attorneys. The Board shall comprise twelve persons of whom six shall be Member/Fellows of the Association and six shall be non-members of the Association. The Board will appoint a Head of the Complaints Board from within the 12 members of the Board. The Head of the Complaints Board will carry out the initial investigation of any complaint against an Attorney. A Complaints Panel may also be formed to deal with the complaint. The Panel for any particular complaint shall be decided by the Head of the Complaints Board and shall consist of three persons of whom not more than two shall be Member/Fellows of the Association. |
| 11.2.3 | The role of the Board is to investigate complaints of professional misconduct and inadequate professional services against Attorneys and, where appropriate, to discipline Attorneys. |
| 11.2.4 | The Board has power to make awards in favour of a client of an Attorney. |
| 11.2.5 | Any reference to the Board or investigation by it is without prejudice to any other rights a complainant may have. In particular the Association-�s Complaints Procedure does not prohibit any complainant from approaching the Scottish Legal Complaints Commission. |
| 11.2.6 | The Board may consider complaints about the professional activities of Association Attorneys from clients, past clients, potential clients, members of the public or from other Attorneys of the Association. |
| 11.3 | Complaint procedure |
| 11.3.1 | Many complaints will first be made by the complainant direct to the Attorney concerned. The Attorney shall make every effort to resolve any such complaint. See Code of Practice Section 10.0. |
| 11.3.2 | Where the Attorney cannot resolve a complaint to the reasonable satisfaction of the complainant the Attorney is under a duty to remind the complainant of the existence of the Code of Practice and of this Complaints Procedure. |
| 11.3.3 | When the Association receives a written complaint which appears to relate to allegations of professional misconduct or inadequate professional services, it will be referred to the Head of the Complaints Board who will:-"
|
| 11.3.4 | Unless the Head of the Complaints Board determines that the Attorney is not liable for disciplinary action he shall write to the Attorney:-" a
informing him of the allegation or information which suggests he may be liable for disciplinary action; b
providing him with copies of any relevant documentation received or obtained by the Head of the Complains Board; c
inviting him to provide a written response within a period specified by the Head of the Complaints Board which will be no more than 28 days from the date of the letter; d
advising him that any response will be disclosed to the maker of the allegation (if any) for comment. |
| 11.3.5 | Having considered any written representation provided by the Attorney and having made further enquiries he considers necessary (including seeking comments on any representations) the Head of the Complaints Board shall:-" a
decide whether there is a realistic prospect of establishing that the Attorney is liable to disciplinary action; and b
decide what further action, if any, should be taken by the Association |
| 11.3.6 | Where the Head of the Complaints Board has determined that there is no realistic prospect of establishing that a Attorney is liable to disciplinary action he shall:-" a
in cases where representations have been sought, write to the Attorney to notify him of the decision; b
advise the Attorney that the allegation or information received will be held by the Association and may be reconsidered by the Head of the Complaints Board on receipt of a fresh allegation or fresh information about the Attorney; c
write to any maker of the allegation to notify him of the decision. |
| 11.3.7 | Where the Head of the Complaints Board has determined that there is a realistic prospect of establishing that an Attorney is liable for disciplinary action, he shall:-" a
decide, having regard to the seriousness of the allegation or information and the public interest, whether or not the Association will take further action in the matter; b
inform the Attorney and any maker of the allegation of the decision and his reasons. |
| 11.3.8 | Where the Head of the Complaints Board has determined that the Association should take further action he shall take one or more of the steps set out below:-" a
serve the Attorney with a Fixed Penalty Notice; b
with the written agreement of the Attorney make a Consent Order; c
refer the matter to a Complaints Panel for consideration under section 11.6 (interim measures); d
refer the matter to a Complaints Panel for consideration under these Rules (discipline). |
| 11.4 | Fixed Penalty Notices |
| 11.4.1 | A Fixed Penalty Notice shall be in accordance with the Procedures Note/Sentencing Policy approved by the Complaints Board of the Association of Commercial Attorneys. |
| 11.5 | Consent Orders |
| 11.5.1 | A Consent Order shall consist of terms requiring the Attorney to:-" a
take or desist from taking certain actions within a specified period of time; b
if appropriate, pay a fine in accordance with the provisions of the published sentencing policy; c
if appropriate, pay costs to the Association in accordance with published scales. |
| 11.5.2 | The Head of the Complaints Board may invite the Attorney to provide their written agreement to a Consent Order within a specified period of time. |
| 11.5.3 | The Head of the Complaints Board may refer the Attorney to a Complaints Panel where:-" a
the Attorney has not provided their written consent to a Consent Order within the time specified by the Head of the Complaints Board; b
any of the terms of the Consent Order have been breached. |
| 11.6 | Interim measures |
| 11.6.1 | Where the Head of the Complaints Board refers the matter to the Complaints Panel for a hearing to consider interim measures, or where the Complaints Panel has directed a review of interim measures, the Head of the Complaints Board shall serve notice of the hearing by special post on the Attorney with reasonable notice. |
| 11.6.2 | The hearing may be in the form of a conference call. |
| 11.6.3 | The hearing shall be conducted in accordance with the provisions of these Rules save that the provisions may be modified by the Complaints Panel in the interests of justice. The procedure will usually consist of the following stages:-" a
the Head of the Complaints Board (or if appointed an Investigating Officer) may outline the allegation or information received by the Association and address the Complaints Panel as to why it might be necessary to impose (or renew) interim measures, and may adduce relevant evidence; b
the Attorney may present his case in relation to the imposition of interim measures and may adduce relevant evidence; c
the Complaints Panel may put questions to any witnesses including the Attorney if he gives evidence; d
the Complaints Panel shall consider its decision in the absence of the parties and announce its decision and give reasons. |
| 11.6.4 | No person shall give oral evidence at the hearing unless the Complaints Panel considers such evidence is relevant to enable it to discharge its functions. |
| 11.6.5 | If the Complaints Panel is satisfied that there is credible evidence demonstrating the Attorney may be liable for disciplinary action and it is necessary having regard to the seriousness of the allegation or information and the public interest and the interests of the Attorney, the Panel may:-" a
take no action or conclude any interim measures; b
suspend the Attorney-�s registration with the Association, with immediate effect, for a period not exceeding twelve months; c
require the Attorney to refrain from practising all or part of the role of an Attorney for a period not exceeding twelve months; d
direct that shortly before the end of the period of interim measures (if not previously concluded) the matter shall be referred back to a Complaints Panel for a review. |
| 11.6.6 | Where there has been a change of circumstances, on the application of the Attorney, or of his own volition, the Head of the Complaints Board may refer a case back for review of an interim suspension by a Complaints Panel. |
| 11.6.7 | The Complaints Panel shall have power to conclude interim measures in any case where they are determining disciplinary action. |
| 11.7 | Cancellation |
| 11.7.1 | The Head of the Complaints Board may cancel a referral to the Complaints Panel in the following circumstances:-" a
the death of an Attorney or, in the case of a firm, it ceasing to exist; b
very exceptionally on the application of an Attorney who wishes to resign their registration with the Association (only applicable where the resignation is deemed sufficient penalty in respect of the complaint receive); c
in circumstances where there is no longer a realistic prospect of establishing that the member is liable for disciplinary action; d
in other circumstances as determined by the Head of the Complaints Board, having regard to the seriousness of the allegation or information and the public interest. |
| 11.8 | Notices |
| 11.8.1 | When a hearing is required to consider a matter under the provisions of these Rules, the Head of the Complaints Board shall fix a date, place and time for the hearing and, in correspondence sent by special post, shall:-" a
set out the charge or decision subject to review or appeal; b
give the Attorney notice of the hearing which shall not, except in the case of interim measures hearings under paragraph 11.6.1, be less than 28 days from the date of the letter; c
inform him of the date, time and place of the hearing; d
provide him with a copy of these Rules; e
send him a listing questionnaire relating to the hearing containing provision for the Attorney to make admissions in response to the charge and in Appeal Panel cases requiring him to indicate within 7 days whether he wishes to request an oral hearing which he could then attend. |
| 11.9 | Public Hearings |
| 11.9.1 | Complaints Panels shall usually sit in public except when considering interim measures. |
| 11.9.2 | The Attorney who may be liable for disciplinary action or the Head of the Complaints Board may request that the hearing in whole or in part shall be held in private. The Panel may only grant such a request in whole or in part where it considers that exceptional circumstances apply which justify that decision. |
| 11.10 | Legal Assessor |
| 11.10.1 | Complaints Panel may be advised by a suitably qualified and experienced legal assessor. |
| 11.10.2 | The legal assessor may advise a Panel on the following matters:-" a
any question of law as to evidence or procedure; b
any other matter arising in connection with these rules including any relevant associated guidance issued by the Association; c
the drafting of any written decision and the structuring of the Panel-�s reasons. |
| 11.10.3 | Where a legal assessor advises a Panel, he shall do so in the presence of the parties (if present) or, if the advice is tendered after the Panel has retired for any reason, the parties shall be informed as to what advice has been given prior to the Panel reaching any decision. |
| 11.11 | Proceeding in absence of the Attorney |
| 11.11.1 | Where the Attorney whose case is being considered by a Panel is not present and is not represented the Panel may proceed in the absence of the Attorney if they are satisfied that notification under section 11.8 has been properly given. |
| 11.12 | Oral Hearings and Representation |
| 11.12.1 | Where the Attorney has requested an oral hearing before the Complaints Panel the matter shall be considered as set out below and an oral hearing should be granted where it is considered this will assist in fairly dealing with the matter. |
| 11.12.2 | Where there is to be an oral hearing the Attorney has the right to appear in person before the Complaints Panel and may, if he so wishes, be represented by a lawyer, a representative from any professional organisation of which he is a member or, at the discretion of the Complaints Panel, any other Attorney of his choice. A representative may not give evidence at the hearing. |
| 11.13 | Voting |
| 11.13.1 | Where the Complaints Panel is required to decide an issue:-" a
the matter shall be put to a vote; b
no panel member shall be allowed to abstain; c
the matter shall be decided by a simple majority. |
| 11.14 | Costs |
| 11.14.1 | The Complaints Panel may make such order for costs against the Attorney or the Association as it considers fair and reasonable, subject to the requirement that an estimate of costs incurred by a party shall be served on the other parties at least 24 hours before the hearing. |
| 11.15 | Adjournments |
| 11.15.1 | The Head of the Complaints Board, (or Complaints Panel after the commencement of a hearing), may at any stage adjourn a hearing. In such circumstances the parties shall be informed in writing, by special post, of the date, time and place of a resumed hearing. |
| 11.15.2 | If for any reason any member of the Complaints Panel is during the course of the hearing unable to continue to attend, or attend the adjourned hearing, the hearing may be re-heard by a new Panel appointed by the Head of the Complaints Board. |
| 11.16 | Panel Decisions |
| 11.16.1 | All Complaints Panel decisions under these Rules shall be notified by the Association to the Attorney by special post within 14 days of the conclusion of hearing. |
| 11.17 | Publication and Records |
| 11.17.1 | Publication of all decisions under these Rules shall be at the discretion of the Complaints Panel. |
| 11.17.2 | All Complaints Panel decisions under these Rules shall be recorded on the Attorney-�s record. |
| 11.18 | Complaints Panel Procedures |
| 11.18.1 | At any hearing before a Complaints Panel:-" a
the rules on the admissibility of evidence that apply in civil proceedings (Scotland) shall usually apply, although the Complaints Panel may receive relevant evidence which would not be admissible if it is satisfied that admission of that evidence is necessary to ensure a fair hearing; b
where the Attorney has been convicted of a criminal offence a certified copy of the conviction shall be admissible as proof of that conviction; c
the parties shall be permitted to call witnesses to give oral evidence and the Complaints Panel may request the attendance of witnesses or the provision of documents; d
any witness called shall first be examined by the party calling him, may be cross-examined by the other parties or their representatives, may be re-examined and may be asked questions by the Complaints Panel. |
| 11.18.2 | Save where the Complaints Panel decides otherwise the order of proceedings before the Complaints Panel shall be as follows:-" a
The Panel Chairman shall read out the charge; b
The Chairman asks the Attorney or his representative (if present) if any of the matters are admitted; c
The Chairman shall invite the Presenting Officer to present the case against the Attorney and to adduce relevant evidence in support of that case; d
At the conclusion of the case against the Attorney the Chairman shall invite the Attorney or his representative (if present) to address the Complaints Panel and to adduce relevant evidence in relation to the charge; e
If the Attorney or his representative has addressed the Complaints Panel the Chairman shall then invite the Investigating Officer (who may be the Head of the Complaints Board) to make his closing address; f
The Chairman shall invite the Attorney or his representative (if present) to make his closing address; g
If necessary, the Complaints Panel shall then retire to make its findings as to the facts and whether the Attorney is liable to disciplinary action in the absence of the parties and before doing so may seek legal advice from its Legal Assessor; h
The Chairman shall then announce the Complaints Panel-�s findings as to the facts and whether the Attorney is liable to disciplinary action, together with the Panel-�s reasons, before those parties who are present; i
The Chairman shall then invite the parties present to address the Complaints Panel as to penalty (where the charge has been found proved and as to costs, and to adduce evidence as to any previous disciplinary record held by the Association and any mitigation; j
The Complaints Panel shall then retire to make its decision in relation to any penalty to be imposed and costs in the absence of the parties and before doing so may seek legal advice from its Legal Assessor; k
The Chairman shall then announce the Complaints Panel-�s decision and reasons as to penalty and its decision as to costs before those parties who are present. |
| 11.19 | Burden of Proof |
| 11.19.1 | The burden of proof shall be on the Association and where the Complaints Panel must determine issues of fact the standard of proof shall be on the balance of probabilities. |
| 11.20 | Penalties |
| 11.20.1 | The penalties available to the Complaints Panel are:-" a
to caution the Attorney against repeating the conduct or action which is found to have constituted the contravention; b
to reprimand or severely reprimand the Attorney; c
to require the Attorney to give one or more undertakings as to future conduct; d
to fine the Attorney; e
to instruct compensation be paid; f
to impose conditions on the Attorney-�s continued registration of the Association; g
to expel the Attorney from the Association. |
| 11.21 | Decisions of the Complaints Panel |
| 11.21.1 | All decisions of the Complaints Panel shall usually take immediate effect unless the Panel directs otherwise. In the event of an appeal by the Attorney no fine shall become payable until the determination of the Appeal but all other penalties shall continue pending determination of the Appeal. |
| 11.22 | Appeals |
| 11.22.1 | An Attorney may appeal to the Appeal Panel against:-" a
a decision of the Fixed Penalty Reviewer (Head of the Complaints Board); b
a decision of the Complaints Panel. |
| 11.23 | Appeals Procedure |
| 11.23.1 | Any appeal or requirement for review by the Association shall be lodged with the Chairman of the Association within 28 days of service of notification of the decision to be appealed or reviewed. If the complaint is concerning the Chairman of the Association the matter will be dealt with by the Vice Chairman or Secretary of the Association. |
| 11.23.2 | The Appeal Panel shall be decided by the Head of the Complaints Board and shall consist of three persons of whom not more than two shall be Member/Fellows of the Association. No person that sat as a member of the initial Complaints Panel may sit on the Appeal Panel. |
| 11.23.3 | An appeal shall only be accepted by the Association if it is:-" a
in writing in the form prescribed by the Association from time to time; b
specifies the grounds relied on in support of the appeal. |
| 11.23.4 | An appellant may withdraw his notice of appeal at any stage. In such circumstances the Appeal Panel may make an award for costs. |
| 11.23.5 | No appeal shall be allowed to proceed to the Appeal Panel without the permission of the Chairman or Vice Chairman of the Association. |
| 11.23.6 | An Appeal Panel shall review the decision of the Complaints Panel or Fixed Penalty Reviewer having regard to:-" a
the evidence presented to the Complaints Panel or Fixed Penalty Reviewer; b
any representations made to the Complaints Panel or Fixed Penalty Reviewer if available in written form, including any transcript of any hearing; c
the appellant-�s grounds of appeal; d
any representations which the appellant or the Head of the Complaints Board may wish to make to the Appeal Panel regarding the findings and/or penalties imposed by the Complaints Panel or Fixed Penalty Reviewer. |
| 11.23.7 | The parties may not provide new evidence to the Appeal Panel without leave of the Panel. |
| 11.23.8 | The burden shall be on the Appellant to satisfy the Appeal Panel that the order being appealed was wrong. |
| 11.23.9 | Where the Attorney has been granted an oral hearing before the Appeal Panel, except where the Panel decides otherwise, the order of proceedings before the Appeal Panel shall be as follows:-" a
The Panel shall hear and consider any preliminary legal arguments; b
The Investigation Officer shall outline the decision which is the subject of the Appeal and direct the Panel to any relevant evidence including transcripts of any hearing; c
If present, the Appellant may address the Panel on their grounds for appeal; d
The Panel may allow either party present an opportunity to make a closing address; e
The Panel may then retire to make its decision in relation to the Appeal and in relation to costs in the absence of the parties, and before doing so may seek legal advice from its Legal Assessor; f
The Chairman shall announce the Appeal Panel-�s decision and reasons and its decision as to costs before those parties who are present. |
| 11.23.10 | Only where the Panel considers that the decision of the Complaints Panel or Fixed Penalty Reviewer was wrong may the Panel allow the appeal. |
| 11.23.11 | Where the Appeal Panel allow the appeal they may:-" a
vary the Complaints Panel-�s finding that the Attorney was liable to disciplinary action; and/or; b
vary the penalty imposed by the Complaints Panel or Fixed Penalty Reviewer to one of greater or lesser severity; c
refer the matter back to a Complaints Panel or Fixed Penalty Reviewer for a new hearing or consideration. |
| 11.23.12 | All decisions of an Appeal Panel shall take effect from the date specified by the Appeal Panel. |
| 11.24 | Review of the Complaints Procedure |
| 11.24.1 | The Complaints Board shall report annually to the Association on complaints received and their outcome. |
| 11.24.2 | The Association shall review on an annual basis the operation of the Complaints/Disciplinary Procedures. |
| 11.25 | Scottish Legal Complaints Commission |
| 11.25.1 | Although the Association of Commercial Attorneys is required to handle complaints about the conduct of its members under section 47 of the Legal Profession and Legal Aid (Scotland) Act 2007, members of the public may make a service complaint to the Scottish Legal Complaints Commission (SLCC). The SLCC will determine whether investigation is required and, if the complaint is investigated and upheld, it will inform the practitioner of its decision. The SLCC will be responsible for any sanctions and the implementation of any recommendations following a complaint. In the event that an individual (Associate/Member/Fellow) does not comply with the recommendations of the SLCC and the SLCC refers the case to the Association as a conduct complaint, the Association will commence Disciplinary Proceedings in accordance with paragraphs 11.1 to 11.23 noted above. |
| 11.25.2 | The SLCC will also investigate the Association-�s handling of a conduct complaint should the complainant refer the matter to the Commission. Should this occur, the Association will co-operate fully with the SLCC and will act on any recommendation by the SLCC within three months of receiving information. |
| 11.26 | Where an issue of conduct has been referred to the Association by the SLCC, it will notify the SLCC of its decision as regards the matter. |
| 12.0 | ADMISSIONS BOARD |
| 12.1 | Association Admissions Board |
| 12.1.1 | The Admissions Board will administer applications from individuals wishing to become Members of the Association. The Admissions Board will administer and be responsible for the issuing of Practising Certificates. The Admissions Board will also administer applications from Members wishing to become Fellows of the Association. |
| 12.1.2 | The Board shall comprise six Member/Fellows of the Association. No person applying for membership shall sit on the Admissions Board while making an application. |
| 12.1.3 | The Board will appoint a Head of the Admissions Board from within the six members. The Head of the Admissions Board will handle applications for individuals wishing to become members, applications for practising certificates and applications from members to become fellows. The Head of the Admissions Board will appoint an Admissions Panel to decide on any application, or applications. The Admissions Panel shall consist of three persons of whom not more than two shall be Member/Fellows of the Association. |
| 12.1.4 | The Head of the Admissions Board will receive applications from individuals wishing to become members, applications for Practising Certificates including renewal) and applications for Fellowship status. The Head of the Admissions Board will carry out all necessary investigations and will prepare and submit a written report to the Admissions Panel in respect of each application. |
| 12.2 | Membership application procedure |
| 12.2.1 | Written applications for Membership shall be referred to the Head of the Admissions Board who will:-"
|
| 12.2.2 | The Admissions Panel will review the report prepared by the Head of the Admissions Board the Panel and will decide on whether or not to accept the application. The Admissions Panel will deal with each application as follows:-" a
the matter shall be put to a vote; b
no panel member shall be allowed to abstain; c
the matter shall be decided by a simple majority. |
| 12.2.3 | The Admissions Panel will then instruct the Head of the Admissions Board to write to the applicant:-"
|
| 12.3 | Interim Practising Certificate |
| 12.3.1 | Where an Interim Practising Certificate is to be issued to an individual the Admissions Board shall instruct the Head of the Admissions Board to:-"
|
| 12.4 | Practising Certificate application procedure |
| 12.4.1 | Written applications for a Practising Certificate or renewal of a Practising Certificate shall be referred to the Head of the Admissions Board who will:-"
|
| 12.4.2 | The Admissions Panel will review the report prepared by the Head of the Admissions Board the Panel and will decide on whether or not to accept the application. The Admissions Panel will deal with each application as follows:-" a
the matter shall be put to a vote; b
no panel member shall be allowed to abstain; c
the matter shall be decided by a simple majority. |
| 12.4.3 | The Admissions Panel will then instruct the Head of the Admissions Board to write to the applicant:-"
|
| 12.5 | Fellowship status application procedure |
| 12.5.1 | Written applications for Fellowship status shall be referred to the Head of the Admissions Board who will:-"
|
| 12.5.2 | The Admissions Panel will review the report prepared by the Head of the Admissions Board the Panel and will decide on whether or not to accept the application. The Admissions Panel will deal with each application as follows:-" a
the matter shall be put to a vote; b
no panel member shall be allowed to abstain; c
the matter shall be decided by a simple majority. |
| 12.5.3 | The Admissions Panel will then instruct the Head of the Admissions Board to write to the applicant:-"
|
| 12.6 | Panel Decisions |
| 12.6.1 | All application decisions under these Rules shall be notified, to the applicant, by the Head of the Admissions Board within 31 days of the panel decision. |
| 12.7 | Review of the Admissions Procedure |
| 12.7.1 | The Admissions Boards shall report annually to the Association on applications received and their outcome. |
| 12.7.2 | The Association shall review on an annual basis the operation of the all the Admissions Procedures and Admission Requirements. |
| 13.0 | STATEMENTS |
| 13.1 | In accordance with section 25(2) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 the Association has complied with the provisions of Schedule 2 of the said Act. |
View a larger version of this imageList of Recognised Professional Bodies
Royal Institution of Chartered Surveyors
Institution of Civil Engineers
Institute of Highway Engineers
Institute of Structural Engineers
Chartered Institute of Builders
Royal Institute of British Architects
Royal Incorporation of Architects in Scotland
Chartered Institution of Building Services Engineers
The Institute of Electrical Engineers
The Institution of Mechanical Engineers
Other bodies considered to be of equal standing to the above list by the Admissions Board
Construction qualification
Doctorate in a Construction related subject
Masters Degree in a Construction related subject
Bachelors Degree in a construction related subject
HND/HNC or OND/ONC in a construction related subject
City and Guilds in Design
Qualifications considered to be of equal standing to the above list by the Admissions Board
PRACTICAL LEGAL TRAINING COURSE OUTLINE
INTRODUCTION
The course will comprise three modules, as follows:
-� Module 1 -" Foundation Module
-� Module 2 -" Ordinary Cause Actions in the Sheriff Court
-� Module 3 -" Small Claims, Summary Cause, Commercial Actions and Enforcement
The content of each module is outlined in further detail below.
Each module will comprise two seminars, each of approximately three hours duration. Preparatory reading will be required in advance of each seminar. In addition, assignments will be set at the first seminar in each module, for submission in advance of the second module. Assignments will be reviewed and returned to students at the second module, with comments.
Formal assessment of the modules will be by way of the Assignments issued throughout the course. Completion of the course and the submission of competent assignments will be required before the Association will issue an Interim Practising or Practising Certificate.
While seminars will include a lecture component, students will have completed preparatory reading in advance and the emphasis will be on skills development.
It is anticipated that each module will require students to be engaged for sixteen hours; six hours in class and a further ten hours in preparatory reading and written assignments.
AIMS AND OBJECTIVES
The collective aim of the three modules will be:
(a) to develop skills relevant to the conduct of civil litigation in the sheriff court in the context of contractual and commercial disputes under small claims and summary cause procedures;
(b) to develop skills relevant to the drafting of an initial writ and conduct of the early stages of an ordinary cause action.
This course is not designed to teach substantive law.
OBJECTIVES:
By the end of the three modules, students should be able to:
demonstrate an understanding of the Scottish court system and the rules of jurisdiction
analyse potential claims
conduct Small Claims and Summary cause actions
draft an initial writ
critically analyse written pleadings
demonstrate an understanding of enforcement procedures
demonstrate an understanding of professional ethics and the rules of conduct in the context of civil litigation in the Sheriff Courts
FOUNDATION MODULE
Preparatory Reading will be assigned in advance of the first seminar.
Seminar 1
The Scottish Court System
Sheriff Court
Court of Session
Appeals
Jurisdiction
Territorial Jurisdiction
Privative Jurisdiction of the Sheriff Court
Privative Jurisdiction of the Court of Session
Concurrent Jurisdiction of the Sheriff Court and the Court of Session
Civil Jurisdiction and Judgements Act 1982
Introduction to Written Pleadings -" basic drafting skills
(Assignment for submission before Seminar 2 -" draft an initial writ).
Seminar 2
Feedback on drafting assignments
Case Analysis
Written Pleadings (continued)
Professional Ethics
Consolidation of Foundation Module
MODULE 2 -" ORDINARY CAUSE ACTIONS IN THE SHERIFF COURT
Preparatory Reading will be assigned in advance of the first seminar.
Seminar 1
Ordinary Cause Procedure
Written pleadings -" Relevancy
Written Pleadings -" Specification
Drafting the Initial Writ
Diligence on the Dependence
(Assignment for submission before Seminar 2 -" draft an initial writ)
Seminar 2
Acting for the Defender
Analysing the initial writ
Drafting Defences
Adjustments
Notes of basis of preliminary pleas
The Options Hearing
Further Procedure
Consolidation of Module Two
MODULE 3 -" SMALL CLAIMS, SUMMARY CAUSE AND COMMERCIAL ACTIONS
Preparatory Reading will be assigned in advance of the first seminar.
Seminar 1
Small Claims Procedure
Summary Cause Procedure
Summary Applications
Appearing in court -" introduction to oral advocacy (practical exercise)
(Assignment for submission before Seminar 2 -" draft a statement of claim, note of defence and a summary application)
Seminar 2
Feedback on written assignments
The Proof
preparing for the proof
evidence
examination in chief, cross examination, re-examination
objections
submissions
Commercial Actions
Enforcement/ diligence
Consolidation of Module Three
(This note is not part of the Act of Sederunt)
By sections 25 to 29 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, any professional or other body may, for the purpose of enabling any of their members who is a natural person to acquire rights to conduct litigation or rights of audience, make an application for that purpose to the Lord President of the Court of Session and the Scottish Ministers. Such an application must include a draft scheme, which the Lord President and the Scottish Ministers may approve. Where the Lord President and the Scottish Ministers approve such a scheme, section 26(6)(a) of the 1990 Act requires the Lord President to grant the application. Section 27(1) of the 1990 Act provides that where such an application has been granted any member of the body concerned who is qualified under the scheme and who appears to the body to be a fit and proper person has the rights to conduct litigation or rights of audience to which that qualification entitles him or her.
Section 26(7) of the 1990 Act provides that where an application has been granted in relation to civil proceedings, the Court of Session may by act of sederunt make such provision as appears to it to be appropriate for giving effect to the scheme.
The Lord President having on 22 April 2009 granted an application made by the Association of Commercial Attorneys for certain rights to conduct litigation and certain rights of audience in the sheriff court, this Act of Sederunt is made to give effect to the relevant scheme.
