Rules and guidance

These rules may be cited as the Law Society of Scotland Practice Rules 2011. These rules shall come into operation on 1 November 2011.

In these rules, unless stated to the contrary or the context otherwise requires, terms listed in the first column of Schedule 1 to these rules shall have the meanings respectively ascribed to them in the second column of Schedule 1.

This Glossary includes all the defined terms contained in Schedule 1 to the Law Society of Scotland Practice Rules 2011, as referred to in Rule A2: Definitions and Interpretation.

Save where and to the extent stated to the contrary in any of these rules: if you are a solicitor the following rules apply to you

Rule 3 in Section A of the rules sets out which of the practice rules apply to the different categories of regulated person both generally and when engaged in certain types of work.

Failure to comply with these rules may be treated as professional misconduct or unsatisfactory professional conduct.

Subject to rule 5.2 the Council shall have the power to waive any of the provisions of these rules in any particular circumstances or case

Schedule 2 is referred to in Rule 5.2 in Section A of the rules. It details the rules which the Council has no power to waive.

Rule A5 provides that the Council may waive practice rules except those specified in Schedule 2 to the rules.

There are two Waiver Application Forms

The rules and regulations listed in Schedule 3 are hereby revoked and such revocation shall have the equivalent effect as would the repeal of an enactment by an Act of Parliament pursuant to section 16 of the Interpretation Act 1978.

Schedule 3 is referred to in Rule 6.1 in Section A of the rules. It details the rules which are revoked by the 2011 rules, subject to the savings provisions in Rule 6.2 in Section A.

Subject to rule 7.2, where any of these rules permits or requires the Society or the Council to give or send a notice to, or serve a notice on, any person then such notice shall be:

Save when and to the extent engaged in cross-border practice you shall comply with the standards of conduct set out in this rule 1.

You must be trustworthy and act honestly at all times so that your personal integrity is beyond question.

You must give independent advice free from external influences or personal interests which are inconsistent with these standards.

You must act in the best interests of your clients subject to preserving your independence and complying with the law, these rules and the principles of good professional conduct.

You are the agent of your client and must have the authority of your client for your actings. You must not accept improper instructions

You must maintain client confidentiality.

You must not act for two or more clients in matters where there is a conflict of interest between the clients or for any client where there is a conflict between the interest of the client and your interest or that of your practice unit.

Where you are consulted about a matter in which you have, or your practice unit has, a personal or a financial interest, the position must be made clear to the client as soon as possible.

You must communicate effectively with your clients and others

You must only act in those matters where you are competent to do so.

The fees you charge must be fair and reasonable in all the circumstances.

You must not cease to act for clients without just cause and without giving reasonable notice, or in a manner which would prejudice the course of justice.

You must never knowingly give false or misleading information to the court. You must maintain due respect and courtesy towards the court while honourably pursuing the interests of your clients.

You must act with other regulated persons in a manner consistent with persons having mutual trust and confidence in each other.

You must not discriminate on the grounds of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex or sexual orientation in your professional dealings with other lawyers, clients, employees or others

Practice rule imposing duty to Co-operate with the Society

Practice rule on duty to co-operate with the SLCC

You should never attempt to prevent or discourage clients or others from making complaints to the Scottish Legal Complaints Commission whether by means of provisions in your Terms of Business, or by any other means. Any attempt to do so may call into question your compliance with the Standards of Conduct.

The standards of conduct contained in rule B1 do not apply when you are engaged in cross-border practice. Note that this term does not encompass transactions or activity between the constituent parts of the United Kingdom.

Outsourcers should give independent advice

Supervision of non-solicitor employees It is emphasised that the obligation in rule B1.4.1 (to "act in the best interests of your clients subject to preserving your independence and complying with the law, these rules and the principles of good professional conduct") extends to practice units as well as individual solicitors.

A solicitor must (a) have instructions from their client and (b) be satisfied when taking instructions that the client has the capacity to give instructions in relation to that matter.

Signature of Certificates on Powers of Attorney - Trainee Solicitors Sections 15, 16 and 16A of the Adults with Incapacity (Scotland) Act 2000 provide that a continuing power of attorney or a welfare power of attorney must incorporate a certificate by a practising solicitor or a doctor that the solicitor or doctor has interviewed the granter immediately before he or she signed the documents;

Vulnerable clients

Confidentiality is related to conflict of interest but is also a separate and distinct question. The position is set out in rule B1.6 which states "You must maintain client confidentiality. This duty is not terminated by the passage of time.

The law and the legal profession are of significant interest to the media and their readers, listeners and viewers.

You must maintain client confidentiality.

B1.7: Conflict of Interest in relation to Outsourcing

Obligation on outsourcers to disclose interests

Guidance for solicitors providing advice on dispute resolution procedures

Check the skills of outsourced providers

Contact from Opponent’s Client It has come to the attention of the Professional Practice Committee that there is an increasing tendency for Defenders to telephone Pursuers' agents direct to discuss active cases.

The Professional Practice Committee and the Council confirm that where money or deeds are sent to be held as undelivered pending purification of a condition, they should be so held if the condition is not purified. Settlement will not take place until they can be treated as delivered.

Diversity - Outsourcing

Data protection - good practice Note issued by the information commissioner

Consent Form produced by the British Medical Association

Ensuring fairness, creating opportunities. This is a practical guide for firms. It covers how firms can improve practice, broaden skills and develop new business by understanding the needs of different clients and staff. An additional supplement focuses on the specific of access for people with disabilities.

Advice and Information related to rule on duty to co-operate with the SLCC

You shall not act for two or more parties whose interests conflict.

You shall not knowingly act on instructions in relation to the preparation of testamentary writings which could reasonably be perceived to give unfair benefits to you or those connected with you by family or professional relationships.

Conflict of Interest Generally It is a well established principle that solicitors should not act for clients where there is a conflict of interest between them. This is codified in rule B2.1.2 which states that "You shall not act for two or more parties whose interests conflict."

The Society believes that a definition of a commercial security transaction is helpful: "A commercial security transaction relates to the secured lending to a customer of a bank or other lending institution where the purpose of the loan is clearly for the customer's business purposes".

Where there is a combination of solicitor and non-solicitor executors, a solicitor executor should not use his power as executor to secure the continuity of his acting as solicitor in the winding up of the estate.

From time to time the Law Society is asked to provide guidance to solicitors who have been asked to act as a director of a company which is also a client of the practice unit (and also where a company of which the solicitor is a director becomes a client of the practice unit).

After extensive discussion and consideration the view of the Society is that in general there is a clear conflict and the same solicitor should not advise both parties in relation to preparation of a cohabitation agreement

Guidance on conflict of interest issues in relation to guarantees.

Rule B2.2 is a restatement of The Solicitors (Scotland) (Drafting Wills) Practice Rules 2010 ("the 2010 Rules") with one amendment (the addition of the word "knowingly" before the word "act" in rule B2.2.2, added for clarity and consistency with B2.2.3).

All applications for waiver should be made on the relevant form (see the Forms and Fees related to Rule A5) and addressed to the Secretary of the Rules, Waivers and Guidance Sub-Committee.

All applications for waiver should be made on the relevant form (see the Forms and Fees related to Rule A5) and addressed to the Secretary of the Rules, Waivers and Guidance Sub-Committee.

Subject to rules 3.2 and 3.5, you shall be entitled to advertise and promote your services in any way you think fit.

Where your fees for your services are advertised either by you or by a third party and whether or not you are named in such an advertisement the advertisement must include mention of outlays and VAT with no less prominence than the fees.

It is difficult to draw lines between a response to advertising, competitive quoting and touting. It remains the case, however that you should not directly approach someone else's client.

All Mandates requesting the transfer of papers and legal aid relating to a criminal matter shall be completed and executed by the assisted person in the form agreed by the Scottish Legal Aid Board and the Law Society of Scotland.

When tendering for business or at the earliest practical opportunity upon receiving instructions to undertake any work on behalf of a client, you shall provide the following information to the client in writing:

This rule requires solicitors to provide information in writing to clients about certain specific matters namely

The Professional Practice Committee considers that it is unnecessary to provide written information as required by rule B4 at least in domestic security transactions, as lenders are setting out the terms of the relationship in their instructions to solicitors and fees will require to be paid by the borrower.

During October 2008 there was uncertainty about the stability of banks and the Society sought the opinion of the Dean of Faculty. That opinion can be summarised as follows::

Unless agreed otherwise and set out in Terms of Business or a separate letter which provides either that no interest will be earned because of current bank interest rates, or that some of the interest will be retained by the practice unit, then the matter is covered by Rule B6.10 (the Accounts etc rules).

FATCA applies to any financial institution that pays money to a US taxpayer anywhere in the world.

A well drafted letter of engagement is a useful risk management tool which can have real benefits for solicitors and their firms. Time spent considering and crafting a well-tailored terms of business letter at the outset of a transaction will help to minimise the risk of complaints at a future stage. Solicitors may therefore wish to consider the advice and information on our website when drafting terms of business letters:

By each date set out in rule 5.2.2 a practice unit shall designate one of its managers as its Client Relations Manager, who shall be responsible for dealing with complaints made to that practice unit.

1. Records to be kept (Rule B5.5.1) It is not intended that the record keeping exercise should simply be an administrative one.

Subject to the provisions of rule 6.6 every practice unit shall – (a) ensure that at all times the sum at the credit of the client account, or where there are more such accounts than one, the total of the sums at the credit of those accounts, shall not be less than the total of the clients’ money held by the practice unit;

Do I have to keep all my client funds in the client bank account? Yes. You must always have sufficient funds in the client bank account to cover all of the client credit balances.

This note looks at the case of Bowman v Fels decided by the Court of Appeal in England on 8 March 2005 [2005] EWCA Civ 226. This case overturns the decision of the High Court in P v P decided in 2003.

The recent slow down in the UK property market has exposed a rise in mortgage fraud by organised criminals and the potential vulnerability of professionals to be exploited by organised crime syndicates.

Advice & Information on revisions to Rule B6 (Accounts, Accounts Certificate, Professional Practice and Guarantee Fund) effective from 4 January 2023

There are three Accounts Certificate forms

The Society shall take out and maintain with authorised insurers to be determined from time to time by the Council a master policy in terms to be approved by the Council to provide indemnity against such classes of professional liability as the Council may decide

The Society shall manage and administer the contingency fund monies.

Under the Society's arrangements for the Master Policy for Professional Indemnity Insurance firms whose activities are restricted to criminal court work only throughout the practice year are entitled to a discount on their Master Policy premium.

Outsourcing – prof indemnity insurance

For further information, see Master Policy Information.

No agreement in writing between you and your client as to your fees in respect of any work done or to be done by you for your client

You shall neither authenticate, nor apply for registration in the Land Register of, a document created as an electronic communication within the ARTL System on behalf of any person unless you have obtained a mandate in your favour

Subject to rules 8.3.3 and 8.3.4, you may take industrial action.

Where in the course of advising a client you identify a situation which may require appearance in a Superior Court in circumstances where such appearance is restricted to a solicitor advocate or an advocate, you shall advise your client:

This guidance is designed as a reminder of the interlocking framework of rules that apply when advising a client on the choice of representation where appearance is required in the superior courts.

Practice Rules governing our members' anti-money laundering compliance

AML resources including Guidance related to Rule B9

When conducting cross-border practice you shall observe and be bound by the terms of the Code at all times.

The standards of conduct contained in rule B1 do not apply when you are engaged in cross-border practice. Note that this term does not encompass transactions or activity between the constituent parts of the United Kingdom. When engaged in cross-border practice you must comply with rule C1 instead

This rule 2 makes provision for the carrying on by practice units of incidental financial business.

An individual solicitor or firm of solicitors can undertake certain regulated activities and thereby be exempt from the requirement to be authorised by the FSA if that solicitor/firm is licensed by the Society under Part XX of the Financial Services and Markets Act 2000.

Under the Welfare Reform and Pensions Act 1999 the following guidance in relation to the requirements of the financial services legislation has been given to the Society. There are three stages to be considered separately in this area.

The regulatory regime for consumer credit work changed on 1 April 2014.

There are two Incidental Financial Business Forms

(a) grant any application for advice and assistance; (b) sign any application for civil legal aid as a practising solicitor nominated by the applicant;

This guidance is issued by the Council of the Law Society of Scotland in terms of Rule C3 of the Law Society of Scotland Practice Rules 2011, in order to set out the standards expected of solicitors and practice units in relation to the carrying out of civil legal assistance work. In providing civil legal assistance, solicitors are required to comply with these guidelines.

The Law Society of Scotland is responsible for the quality assurance of civil legal assistance provided by solicitors through the legal aid scheme.

Practice units providing civil legal aid are reminded that they will need to nominate a manager (partner) as Compliance Manager

Course of Training in Evidence, Pleading and Procedure The following matters are to be included in the course of training

Course of Training in Evidence and Pleading. The following matters are to be included in the course of training

Where a solicitor advocate accepts instructions to appear in a Superior Court, those instructions shall: (i) take precedence over any other professional obligation;

Propriety of conduct 4.4.2 Where you are in any doubt as to the propriety of any course of conduct you should: (a) seek the advice of the Secretary;

Course of Training in Evidence, Pleading and Procedure. The following matters are to be included in the course of training

For information on how to seek appointment as King's Counsel see the Guidance Notes and Application Form on the Scottish Courts Website

There are two forms: Application for Extended Rights of Audience (Civil Courts) – ROA1 Application for Extended Rights of Audience (Criminal Courts) – ROA2

A solicitor who wishes to obtain a practising certificate for a practice year shall complete and submit an application in, or substantially in, such form as may be prescribed from time to time by the Council.

Practising certificate renewal or PC renewal is required on expiry of existing certificates on 31 October in each year. On this page are a variety of links dealing with PC renewal.

You shall not practise as a manager unless you hold an unrestricted practising certificate.

Subject to rule 2.2.3, if you become a manager of a practice unit you shall be obliged to attend a practice management course within a period not exceeding twelve months after the date on which you became such a manager, or such other period as may be determined by the Council in any particular case.

You shall not cause or permit the name of any person to appear on the nameplate or professional stationery of the practice unit of which you are a manager unless that person is:

Rule D2.1.3 is intended to promote achievement of the regulatory objectives (in particular those

Without prejudice to the restrictions contained in section 47 of the 1980 Act (restrictions on employing solicitor struck off or suspended), you shall not, in connection with your practice as a regulated person, without the prior written permission of the Council, which may be given for such period and subject to such conditions as the Council thinks fit, associate in business with or provide facilities for any person whom you know to be a disqualified person.

The managers of a practice unit which commences practice after the date these rules come into operation shall ensure that the Council is informed of such commencement of practice and certain information

This information is intended to assist those starting a new practice unit.

This information will assist those planning to cease (or wind up) a practice.

There are four Practice Unit Information Forms

Subject to the provisions of rule 5, you may trade as a body corporate in terms of section 34(1A) of the 1980 Act provided

Guidance on incorporated practice rules at D5

The Money Laundering Regulations 2007 require trust and company service providers to be registered with HMRC or a professional regulatory body.

Advice and Information on Applying for Recognition as an Incorporated Practice

Application for Recognition as an Incorporated Practice

The purpose of the European Lawyer Regulations is to implement the Directive in Scotland. This rule 6 makes provision in respect of applications for registration with the Society by European lawyers pursuant to regulation 16 of the European Lawyer Regulations

There are two relevant forms: Application for First Registration as a Registered European Lawyer – REL1 – this is the appropriate form if you are a European lawyer making your first application to be a registered European lawyer registered with the Law Society of Scotland.

An applicant shall apply in writing to the Society for registration by completing (so far as applicable to him) and submitting an application in such form as the Council shall from time to time prescribe, and by making payment of such application fee(s) as the Council shall from time to time prescribe.

There is no bar to lawyers qualified in another jurisdiction 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

There are two relevant forms: Application for First Registration as a Foreign Lawyer – RFL1 – this is the appropriate form if you are a foreign lawyer making your first application to be a registered foreign lawyer.

You may not enter a multi-national practice having any place of business in Scotland unless you obtain the approval of the Council in terms of rule 8.1.3.

The Council may, on application made in terms of rule 8.2.13, determine the principal place of business of a multi-national practice.

Registration of Foreign Lawyers and Multi-national Practices

Application for Approval of Entry into New Multi-National Practice (MNP) and for Determination of Principal Place of Business of New MNP – MNP1

Subject to rule 9.1.3, you shall not form a legal relationship with a person or body who is not a regulated person with a view to your jointly offering professional services as a multi-disciplinary practice to any person or body.

You shall not share with any unqualified person any profits or fees or fee derived from any business transacted by you of a kind which is commonly carried on by regulated persons in Scotland in the course of or in connection with their practice; provided always that:

Rule D9.2 prohibits solicitors and others from sharing "with any unqualified person any profits or fees or fee derived from any business transacted by you of a kind which is commonly carried on by regulated persons in Scotland in the course of or in connection with their practice"; with certain limited exceptions.

Standards of service are based on broad principles recognising the range and variety of work which can be undertaken by a solicitor.

Who owns what in files? The answer is not entirely straightforward and, drawing on the opinion of Counsel, the Society has produced this guidance which we hope will deal with the main queries which arise

The Opinion of Senior Counsel regarding requests by lenders or their solicitors for copies of files.

When a solicitor takes control of files from another solicitor for any reason and in any situation (including but not limited to receipt of files either in implement of a Mandate or where files are taken over from a ceased practice) the solicitor receiving the files should keep a record of all the files received.

Electronic storage of files may be a practical way of dealing with storage.

Where a solicitor is asked to lend titles or other documents to another solicitor a fee may properly be charged for such lending to cover both the delivery and return of the documents

Outsourcing – practical considerations and case studies

Cloud systems may provide an alternative means of storing and processing data.

Information for the profession on the use of social media

The form in which a solicitor presents a business account is a matter for the solicitor's personal preference but if the person liable to pay requires details, the solicitor must give a narrative or summary sufficient to indicate the nature and the extent of the work done.

Guidance on approval by beneficiaries of a final accounting before distribution and settlement

Referral of clients for financial advice from 1 January 2013

Outsourcing of (1) business operational functions such as HR, payroll and Cashroom and (2) aspects of legal service provision such as legal research and document production

This guidance, together with examples has been produced to promote price transparency and encourage practice units to proactively take steps to publish price information in a way that is easily accessible, prominent and understandable for consumers.

The following Code contains a statement of good practice for those solicitors conducting criminal work. It does not have the status of a Practice Rule but may be referred to for guidance in assessing whether a solicitor’s conduct meets the standard required of a member of the profession.

Advice and information for solicitors attending and advising clients at police stations.

The following guidance constitutes an amplification of the standard of practice that the Society considers essential for the compliance with the rules of professional conduct when undertaking immigration, nationality and asylum work

The use of fixed price offers should be considered carefully.

This guidance applies equally to solicitors acting as estate agents as well as solicitors acting in the conveyancing.

It is common for Missives to be in an unconcluded state until shortly before or even at the date of entry.

Liability for Information Contained in Property Questionnaire Solicitors should make clear to selling clients completing such questionnaires that responsibility for the accuracy and truthfulness of those questionnaires rests with the client.

The Society's Professional Practice and Property Law Committee’s view is that if a solicitor does not feel qualified to comment on environmental matters.

The Conveyancing Committee is of the view that conveyancing transactions should be settled with a letter of obligation being granted by the solicitor personally.

Where postal settlement is envisaged, the seller's Solicitor should send the executed deed and deliverable title deeds

Where postal settlement of a transaction is envisaged, good practice is to agree in advance the arrangements for the sending of and intromission with funds and other settlement items.

The Property Law Committee is aware that lenders occasionally insist on this.

Where a sum of money is to be retained at settlement of a conveyancing transaction, the conditions upon which it is retained should be set out in writing at settlement.

Solicitors should be aware that s.111 of The Land Registration etc. (Scotland) Act 2012 ("2012 Act") introduces a statutory duty of care to the Keeper.

Solicitors frequently experience difficulty in obtaining Discharges from lenders, particularly those based in England, where Discharges are not required in the same format and the registers can be cleared more easily.

Aberdeen: Standard Missive Aberdeen Deed of Declaration 2007

The Scottish New Build Standard Clauses (Edition 1)

This Advice Note was drafted by the Property Law Committee in consultation with the Scottish Government and the Council of Mortgage Lenders (“the CML”)

The Committee was asked for guidance about a divorce action where the wife defender had agreed terms with her husband in a Joint Minute which was signed by her solicitors.

Guidance to promote and encourage Scottish solicitors to use the Society's Style Success Fee Agreement (SSFA) and to highlight the solicitors' responsibilities when doing so.

This is a list of Insurance members who participate in the Pre-action Protocol.

The pre-action protocol was introduced as a framework for parties seeking to resolve professional negligence cases by negotiation. Compliance with the Protocol is voluntary.

The pre-action protocol was introduced as a framework for parties seeking to resolve disease cases by negotiation. Compliance with the Protocol is voluntary.

Responsibility for admission and registration of notaries lies with the Council of The Law Society of Scotland under the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990.

The provisions that were in place in the Coronavirus (Scotland) (No2) Act 2020 Schedule 4, part 7 have now been incorporated into the Requirements of Writing (Scotland) Act 1995.

Guidance for solicitors who undertake Mental Health Tribunal work.

Continuing and Welfare Powers of Attorney

Advice and Information for solicitors on how to certify a Power of Attorney when you are not able to be in the same physical location as the granter.

This guidance is produced in light of the Scottish Solicitors’ Discipline Tribunal’s findings

Advice and Information for solicitors on taking instructions and arranging for execution of a will when you are not able to be in the same physical location as the client.