Professional Practice FAQ's
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Can I accept a settlement cheque/Letter of Obligation from a firm of Licensed Conveyancers?
File storage is becoming a problem Can you give me details of how long various files require to be retained?
In regard to accident claims the other side are claiming expenses (under Chapter 10) but there has not yet been a Court action. Are these expenses for client and solicitor or party & party?
I was trying to check if, given the nature of the work I do, I actually still need a practising certificate and what the implications were of not having one?
My query relates to foreign lawyers working in an in-house counsel position for a company in Scotland. The guidelines for the Law Society of England and Wales state that it is not necessary for a foreign lawyer to be qualified in England and Wales in order to work in such a position in a company in England. Is the same true for Scotland?
My client has failed to pay a Reporters fee in court. Is my firm personally liable for this as with other professional fees?
I have an established client who has a portfolio of properties which are leased out and which are presently in his sole name. He is embarking on a series of remortgages and at the same time transferring the titles from himself to the joint names of his two daughters (his only children) and himself and amend the leases to reflect that.
Can I act for all parties and if so do I need two different solicitors in the firm to act for the transferor and the transferees respectively (notwithstanding that one of the transferees is also the transferor). Do I need to have simple missives in place covering these transfers.
Is there any restriction on direct debits for Registers of Scotland etc from a client bank account?
Can I accept a settlement cheque/Letter of Obligation from a firm of Licensed Conveyancers?
Yes - Independent Conveyancers are now Regulated by the Society and have a compensation fund broadly equivalent to the Guarantee Fund as well as professional indemnity cover.
File storage is becoming a problem Can you give me details of how long various files require to be retained?
There is a detailed Guideline on the Ownership and Destruction of Files giving details of the steps that require to be taken and timescales involved.
In regard to accident claims the other side are claiming expenses (under Chapter 10) but there has not yet been a Court action. Are these expenses for client and solicitor or party & party?
When the Society had a recommended Table of Fees (which was withdrawn in August 2005), Chapter 10 dealt with compensation claims settled without litigation. It was not binding on anyone, but by unwritten convention, insurers paid fees to claimants' solicitors in line with it. It no longer exists. From 1st January 2006 an agreement with insurers linking a Protocol for dealing with personal injury claims to a Fee Structure, which could be adopted by agreement in other types of claim became operational. Please note that fees increased on 1 July 2007.
I was trying to check if, given the nature of the work I do, I actually still need a practising certificate and what the implications were of not having one?
See S4 and S21 and S32 of the Solicitors (Scotland) Act 1980. If you will be acting for clients in the matters proscribed in S32 or held out as a solicitor or consultant, you need a pc. If none of these apply, you do not.
My query relates to foreign lawyers working in an in-house counsel position for a company in Scotland. The guidelines for the Law Society of England and Wales state that it is not necessary for a foreign lawyer to be qualified in England and Wales in order to work in such a position in a company in England. Is the same true for Scotland?
There is no bar to foreign lawyers working in Scotland, provided they do not describe themselves as "solicitors" and do not do certain types of work reserved by statute for Scottish qualified solicitors (S32 of the Solicitors (Scotland) Act 1980). Those are broadly Conveyancing of land and/or buildings; litigation (civil or criminal); and obtaining Confirmation in favour of Executors (the Scottish equivalent of Probate).
My client has failed to pay a Reporters fee in court. Is my firm personally liable for this as with other professional fees?
The position here is discussed at length in the case Deryck De Main Beaumont for Review of a Decision of the Scottish Solicitors Discipline Tribunal Dated 28th September 2005 and Intimated to the Petitioner on 31 October 2005 [2006] CSIH 27. In the Sheriff court the matter is governed by the Act of Sederunt which contains the General Regulations on Sheriff Court fees. Para 10 states that without special agreement, the parties alone are liable, not the solicitors. Rule 33.21(2) of the Ordinary Cause Rules also applies. Does the interlocutor appointing the Reporter deal with the fee?
In the Court of Session the position is covered by Rule 42.15 makes the parties solicitors liable unless the court otherwise orders.
The Beaumont judgement states "However, we consider that the general rule, whereby a solicitor is liable for the fees of an expert whom he instructs, plainly applies in this case both generally because the reporter was instructed by the appellant in that capacity and secondly, and in any event, she was simply instructed by letter and that created the obligation on the part of the appellant to meet the fee. "
I have an established client who has a portfolio of properties which are leased out and which are presently in his sole name. He is embarking on a series of remortgages and at the same time transferring the titles from himself to the joint names of his two daughters (his only children) and himself and amend the leases to reflect that.
Can I act for all parties? Do I need two different solicitors in the firm to act for the transferor and the transferees respectively (notwithstanding that one of the transferees is also the transferor)? Do I need to have simple missives in place covering these transfers.
You may act for seller and buyer who are related, provided you are satisfied there is no actual conflict of interest in the particular transactions. An element of gift from husband to wife or parent to child would not automatically create a conflict. I agree it is preferable for 2 different solicitors to do the work, as a matter of risk management in the firm, but it is not a Rule. Neither is there a Rule about missives, but I think the basics should be in a written contract, to avoid difficulties down the line if there is a problem such as death or serious illness, or one party deciding to instruct a different firm.
Is there any restriction on direct debits for Registers of Scotland etc from a client bank account?
Variable direct debit is a robust and secure means of payment, but the Society has issued guidance that the principal client bank account should never be subject to variable direct debit. A separate account should be opened from which to operate such payments. This will reduce the risk of an error causing a shortage on the client bank account and assist in the ease of reconciling the account.
Professional Practice Frequently Asked Questions
