On 20/06/2013,
you requested for the version in force on 20/06/2013
incorporating all amendments published on or before 20/06/2013.
The closest version currently available is that of 01/06/2009.
FIRST SCHEDULE
Intervention in Solicitor’s Practice
Part I
Circumstances in Which Society May Intervene
Solicitor practising on own account or firm of solicitors
1.—(1) Subject to sub-paragraph (2), the powers conferred by Part II shall be exercisable where —
(a)
the Council has reason to suspect dishonesty on the part of —
(i)
a solicitor;
(ii)
an employee of a solicitor; or
(iii)
the personal representatives of a deceased solicitor,
in connection with that solicitor’s practice or in connection with any trust of which that solicitor is or formerly was a trustee;
(b)
the Council considers that there has been undue delay on the part of the personal representatives of a deceased solicitor who immediately before his death was practising as a sole solicitor in connection with that solicitor’s practice or in connection with any trust of which that solicitor was the sole trustee or was co-trustee only with one or more of his partners or employees;
(c)
the Council is satisfied that a solicitor has contravened the rules made under section 72;
(d)
a solicitor has been adjudicated bankrupt or he has made a composition or an arrangement with his creditors;
(e)
a solicitor has one or more outstanding judgments against him amounting in the aggregate to $100,000 which he has been unable to satisfy within 6 months from the date of the earliest judgment;
(f)
a solicitor has been committed to prison in any civil or criminal proceedings;
(g)
the Council is satisfied that a sole solicitor is incapacitated by illness or accident, or by any physical or mental condition, to such an extent as to be unable to attend to his practice;
(ga)
the fitness of a sole proprietor to practise has been determined under section 25C to be impaired by reason of his physical or mental condition, or a sole proprietor, having been ordered by a Judge to submit to a medical examination under section 25C to be conducted within such period as the Judge may specify in the order, fails to do so;
5(h)
a solicitor has been found under section 7 of the Mental Disorders and Treatment Act (Cap. 178) to be of unsound mind and incapable of managing himself and his affairs;
5 Sub-paragraph (h) of paragraph 1(1) of the First Schedule will be deleted and substituted by the following sub-paragraph when item 1(26)(d) in the Second Schedule to the Mental Health (Care and Treatment) Act 2008 (Act 21 of 2008) is brought into operation:
“(h)
a solicitor lacks capacity within the meaning of the Mental Capacity Act 2008 to act as a solicitor;”.
(i)
the name of a solicitor has been removed from or struck off the roll or a solicitor has been suspended from practice;
(j)
the Council is satisfied that a sole solicitor has abandoned his practice; or
(k)
the Council is satisfied that a person has acted as a solicitor at a time when he did not have a practising certificate which was in force.
(2) The powers conferred by Part II shall only be exercisable under sub-paragraph (1)(c) if the Society has given the solicitor notice in writing that the Council is satisfied that he has contravened the rules specified in the notice and also (at the same or any later time) notice that the powers conferred by Part II are accordingly exercisable in his case.
2. On the death of a sole solicitor, paragraphs 10, 11 and 12 shall apply to the client accounts of his practice.
3. The powers conferred by Part II shall also be exercisable, subject to paragraph 9(4), where —
(a)
a complaint is made to the Society that there has been undue delay on the part of a solicitor in connection with any matter in which the solicitor or his firm was instructed on behalf of a client or with any controlled trust;
(b)
the Society by notice in writing invites the solicitor to give an explanation within a period of not less than 8 days specified in the notice;
(c)
the solicitor fails within that period to give an explanation which the Council regards as satisfactory; and
(d)
the Society gives notice of the failure to the solicitor and (at the same or any later time) notice that the powers conferred by Part II are accordingly exercisable.
4.—(1) Where the powers conferred by Part II are exercisable in relation to a solicitor, they shall continue to be exercisable after his death or after his name has been removed from or struck off the roll.
5.—(1) Subject to sub-paragraph (2), where —
(a)
the Council is satisfied that a law corporation has contravened any rules applicable to it by virtue of section 72;
(b)
a person has been appointed receiver or manager of property of a law corporation;
(c)
a winding up order, or an order for judicial management under the Companies Act (Cap. 50), has been made with respect to a law corporation or a resolution for voluntary winding up has been passed with respect to a law corporation (other than a resolution passed solely for the purposes of its reconstruction or of its amalgamation with another company); or
(d)
the Council has reason to suspect dishonesty on the part of any officer or employee of a law corporation in connection with that law corporation’s business or in connection with any trust of which that corporation is or formerly was a trustee,
the powers conferred by Part II shall be exercisable in relation to the law corporation and its business in like manner as they are exercisable in relation to a solicitor and his practice.
(2) Those powers shall only be exercisable by virtue of sub-paragraph (1)(a) if the Society has given the law corporation notice in writing that the Council is satisfied that the law corporation has contravened the rules specified in the notice and also (at the same or any later time) notice that those powers are accordingly exercisable in its case by virtue of sub-paragraph (1)(a).
6. The powers conferred by Part II shall also be exercisable as mentioned in paragraph 5(1) where —
(a)
a complaint is made to the Society that there has been undue delay on the part of a law corporation in connection with any matter in which it was instructed on behalf of a client or with any controlled trust;
(b)
the Society by notice in writing invites the law corporation to give an explanation within a period of not less than 8 days specified in the notice;
(c)
the law corporation fails within that period to give an explanation which the Council regards as satisfactory; and
(d)
the Society gives notice of the failure to the law corporation and (at the same or any later time) notice that the powers conferred by Part II are accordingly exercisable.
7.—(1) Where the registration of a law corporation has been cancelled under section 81K, the powers conferred by Part II shall be exercisable in relation to the law corporation and its former business as a law corporation as they are exercisable in relation to a solicitor and his practice.
(2) Where the powers conferred by Part II are exercisable in relation to a law corporation in accordance with paragraph 5 or 6, they shall continue to be so exercisable after that law corporation’s registration has been cancelled or has otherwise ceased to be in force.
8. In connection with the application of Part II to a law corporation in that Part —
(a)
any reference to the solicitor or to his practice shall be construed as including a reference to the law corporation in relation to which the powers conferred by that Part are exercisable by virtue of paragraph 5, 6 or 7(1) or to its business (or former business) as a law corporation;
(b)
any reference to paragraph 1 shall be construed as including a reference to paragraph 5 or 7(1); and
(c)
any reference to paragraph 3 shall be construed as including a reference to paragraph 6.
Limited liability law partnership
8A.—(1) Subject to sub-paragraph (2), where —
(a)
the Council is satisfied that a limited liability law partnership has contravened any rules applicable to it by virtue of section 72;
(b)
a person has been appointed receiver or manager of property of a limited liability law partnership;
(c)
a winding up order under the Limited Liability Partnerships Act (Cap. 163A) has been made with respect to a limited liability law partnership or a resolution for voluntary winding up has been passed with respect to a limited liability law partnership; or
(d)
the Council has reason to suspect dishonesty on the part of any partner or employee of a limited liability law partnership in connection with that limited liability law partnership’s business or in connection with any trust of which that limited liability law partnership is or formerly was a trustee,
the powers conferred by Part II shall be exercisable in relation to the limited liability law partnership and its business in like manner as they are exercisable in relation to a solicitor and his practice.
(2) Those powers shall only be exercisable by virtue of sub-paragraph (1)(a) if the Society has given the limited liability law partnership notice in writing that the Council is satisfied that the limited liability law partnership has contravened the rules specified in the notice and also (at the same or any later time) notice that those powers are accordingly exercisable in its case by virtue of sub-paragraph (1)(a).
8B. The powers conferred by Part II shall also be exercisable as mentioned in paragraph 8A(1) where —
(a)
a complaint is made to the Society that there has been undue delay on the part of a limited liability law partnership in connection with any matter in which it was instructed on behalf of a client or with any controlled trust;
(b)
the Society by notice in writing invites the limited liability law partnership to give an explanation within a period of not less than 8 days specified in the notice;
(c)
the limited liability law partnership fails within that period to give an explanation which the Council regards as satisfactory; and
(d)
the Society gives notice of the failure to the limited liability law partnership and (at the same or any later time) notice that the powers conferred by Part II are accordingly exercisable.
8C.—(1) Where the registration of a limited liability law partnership has been cancelled under section 81Y, the powers conferred by Part II shall be exercisable in relation to the limited liability law partnership and its former business as a limited liability law partnership as they are exercisable in relation to a solicitor and his practice.
(2) Where the powers conferred by Part II are exercisable in relation to a limited liability law partnership in accordance with paragraph 8A or 8B, they shall continue to be so exercisable after that limited liability law partnership’s registration has been cancelled or has otherwise ceased to be in force.
8D. In connection with the application of Part II to a limited liability law partnership in that Part —
(a)
any reference to the solicitor or to his practice shall be construed as including a reference to the limited liability law partnership in relation to which the powers conferred by that Part are exercisable by virtue of paragraph 8A, 8B or 8C(1) or to its business (or former business) as a limited liability law partnership;
(b)
any reference to paragraph 1 shall be construed as including a reference to paragraph 8A or 8C(1); and
(c)
any reference to paragraph 3 shall be construed as including a reference to paragraph 8B.
Part II
Powers Exercisable on Intervention
Money
9.—(1) The High Court may, on the application of the Society, order that no payment shall be made without the leave of the Court by any person (whether or not named in the order) of any money held by him (in whatever manner and whether it was received before or after the making of the order) on behalf of the solicitor or his firm.
(2) No order under this paragraph shall take effect in relation to any person to whom it applies unless the Society has served a copy of the order on him (whether or not he is named in it) and, in the case of a bank, has indicated at which of its branches the Society believes that the money to which the order relates is held.
(3) A person shall not be treated as having disobeyed an order under this paragraph by making a payment of money if he satisfies the High Court that he exercised due diligence to ascertain whether it was money to which the order related but nevertheless failed to ascertain that the order related to it.
(4) This paragraph shall not apply where the powers conferred by this Part are exercisable by virtue of paragraph 3.
10.—(1) Without prejudice to paragraph 9, if the Council passes a resolution to the effect that any sums of money to which this paragraph applies, and the right to recover or receive such sums, shall vest in the Society, all such sums shall vest accordingly (whether they were received by the person holding them before or after the Council’s resolution) and shall be held by the Society on trust to exercise in relation to them the powers conferred by this Part and subject thereto upon trust for the persons beneficially entitled to them.
(2) This paragraph shall apply —
(a)
where the powers conferred by this paragraph are exercisable, by virtue of paragraph 1, to all sums of money held by or on behalf of the solicitor or his firm in connection with his practice or with any trust of which he is or formerly was a trustee;
(b)
where the powers conferred by this paragraph are exercisable by virtue of paragraph 2, to all sums of money in any client account; and
(c)
where the powers conferred by this paragraph are exercisable by virtue of paragraph 3, to all sums of money held by or on behalf of the solicitor or his firm in connection with the trust or other matter to which the complaint relates.
(3) The Society shall serve on the solicitor or his firm and on any other person having possession of sums of money to which this paragraph applies a certified copy of the Council’s resolution and a notice prohibiting the payment out of any such sums of money.
(4) Within 14 days of the service of a notice under sub-paragraph (3), the person on whom it was served may, on giving not less than 48 hours’ notice in writing to the Society and (if the notice gives the name of the solicitor instructed by the Society) to that solicitor, apply to the High Court for an order directing the Society to withdraw the notice.
(5) If the High Court makes such an order, it shall have power also to make such other order with respect to the matter as it may think fit.
(6) If any person on whom a notice has been served under sub-paragraph (3) pays out sums of money at a time when the payment is prohibited by the notice, he shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $5,000.
11.—(1) If the Society takes possession of any sum of money to which paragraph 10 applies, the Society shall pay it into a special account in the name of the Society or of a person nominated on behalf of the Society, and that person shall hold that sum on trust to permit the Society to exercise in relation to it the powers conferred by this Part and subject thereto on trust for the persons beneficially entitled to it.
(2) A bank at which a special account is kept shall be under no obligation to ascertain whether it is being dealt with properly.
(3) Any moneys paid into a special account under sub-paragraph (1) which have not been claimed for a period of 6 years shall be paid by the Society into the Compensation Fund maintained under section 75.
(4) If any claimant makes any demand against the Society for any amount of unclaimed moneys paid into the Compensation Fund under sub-paragraph (3), the Society may pay that amount free of interest to the claimant out of the Compensation Fund.
12. Without prejudice to paragraphs 9, 10 and 11, if the High Court is satisfied, on an application by the Society, that there is reason to suspect that any person holds money on behalf of the solicitor or his firm, the Court may require that person to give the Society information as to that money and the accounts in which it is held.
Documents
13.—(1) The Society may give notice to the solicitor or his firm requiring the production or delivery to any person appointed by the Society at a time and place to be fixed by the Society —
(a)
where the powers conferred by this Part are exercisable by virtue of paragraph 1, of all documents in the possession of the solicitor or his firm in connection with his practice or with any controlled trust; and
(b)
where the powers conferred by this Part are exercisable by virtue of paragraph 3, of all documents in the possession of the solicitor or his firm in connection with the trust or other matters to which the complaint relates (whether or not they relate also to other matters).
(2) The person appointed by the Society may take possession of any such documents on behalf of the Society.
(3) Except in a case where an application has been made to the High Court under sub-paragraph (4), if any person having possession of any such documents refuses, neglects or otherwise fails to comply with a requirement under sub-paragraph (1), he shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $5,000.
(4) The High Court may, on the application of the Society, order a person required to produce or deliver documents under sub-paragraph (1) to produce or deliver them to any person appointed by the Society at such time and place as may be specified in the order, and authorise him to take possession of them on behalf of the Society.
(5) If, on an application by the Society, the High Court is satisfied that there is reason to suspect that documents in relation to which the powers conferred by sub-paragraph (1) are exercisable have come into the possession of some person other than the solicitor or his firm, the Court may order that person to produce or deliver the documents to a person appointed by the Society at such time and place as may be specified in the order and authorise him to take possession of them on behalf of the Society.
(6) On making an order under this paragraph, or at any later time, the High Court may, on the application of the Society, authorise a person appointed by the Society to enter any premises (using such force as is reasonably necessary) to search for and take possession of any documents to which the order relates.
(7) The Society may, on taking possession of any documents under this paragraph, serve upon the solicitor or his personal representatives and upon any other person from whom they were received on the Society’s behalf or from whose premises they were taken a notice that possession has been taken on the date specified in the notice.
(8) Subject to sub-paragraph (9), a person upon whom a notice under sub-paragraph (7) is served may, on giving not less than 48 hours’ notice to the Society and (if the notice gives the name of the solicitor instructed by the Society) to that solicitor, apply to the High Court for an order directing the Society to deliver the documents to such person as the applicant may require.
(9) A notice under sub-paragraph (8) shall be given within 8 days of the service of the Society’s notice under sub-paragraph (7).
(10) Without prejudice to the foregoing provisions, the Society may apply to the High Court for an order as to the disposal or destruction of any documents in its possession by virtue of this paragraph.
(11) On an application under sub-paragraph (8) or (10), the High Court may make such order as it thinks fit.
(12) Except so far as its right to do so may be restricted by an order on an application under sub-paragraph (8) or (10), the Society may take copies of or extracts from any documents in its possession by virtue of this paragraph and require any person to whom it is proposed that those documents shall be delivered, as a condition precedent to delivery, to give a reasonable undertaking to supply copies or extracts thereof to the Society.
Trusts
14.—(1) If the solicitor or his personal representative is a trustee of a controlled trust, the Society may apply to the High Court for an order for the appointment of a new trustee in substitution of him.
(2) The Trustees Act (Cap. 337) shall have effect in relation to an appointment of a new trustee under this paragraph as it has effect in relation to an appointment under section 37 of that Act.
General
15. The powers in relation to sums of money and documents conferred by this Part shall be exercisable notwithstanding any lien on them or right to their possession.
16. Subject to any order for the payment of costs that may be made on an application to the High Court under this Schedule, any costs incurred by the Society for the purposes of this Schedule, including, without prejudice to the generality of this paragraph, the costs of any person exercising powers under this Part on behalf of the Society shall be paid by the solicitor or his personal representatives and shall be recoverable from him or them as a debt owing to the Society.
17. Where an offence under this Schedule committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate or any person who was purporting to act in any such capacity, he, as well as the body corporate, shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
18. Any application to the High Court under this Schedule may be disposed of in chambers.
19. The Society may do all things which are reasonably necessary for the purpose of facilitating the exercise of its powers under this Schedule.
20. In this Schedule, “controlled trust”, in relation to a solicitor, means a trust of which he is a sole trustee or co-trustee only with one or more of his partners or employees.