8 December 2016
Who this application is for
This application is for law firms, their managers and employees, and for individual solicitors who want to employ or remunerate someone who is subject to section 41 or section 43 of the Solicitors Act 1974.
Someone is involved in a legal practice if they:
- are working for or remunerated by a solicitor in connection with the solicitor's practice
- are working in the name of, or under the direction or supervision of, a solicitor
- are working for or remunerated by a law firm we regulate;
- are working for or remunerated by a manager or employee of a law firm we regulate in connection with its business;
- are a manager of a law firm we regulate;
- own or plan to own part or all of a law firm we regulate.
Section 41 of the Solicitors Act 1974 applies to solicitors who have been struck off or suspended from the roll, are prohibited from going back onto the roll, or have had their practising certificate suspended due to bankruptcy.
Under section 43 of the Solicitors Act 1974, we can stop someone who we do not regulate from working in a law firm we regulate. We can do this if they have
- committed a criminal offence, or
- behaved in way we think makes it wrong for them to work in a law firm without our approval.
You can only apply to us for interim permission to employ someone who is subject to section 41 or section 43 if the person you want to employ is appealing against a conviction or other findings.
To apply, use our application form (PDF 4 pages, 222K).
Your firm, not the person you want to employ, must apply to us for approval. The person you want to employ can give us information, but they cannot apply themselves or withdraw an application or appeal our decision.
To help us decide, you need to tell us
- about the role of the person you want to employ, including their tasks and responsibilities and their normal place of business
- whether the person you want to employ will:
- supervise other staff
- be responsible for handling client money
- be a signatory to the client's or firm's account
- have direct contact with clients
- how person you want to employ will be supervised.
The person you want to employ must
- tell us about the work they have done since becoming subject to section 41 or a section 43 order; and
- supply references showing their rehabilitation.
We are unlikely to respond to your application until we have received the detailed findings of the SDT. This is because the findings contain detailed reasons for the SDT's decision, which may, in turn, affect our decision. We take very seriously any recommendations from the SDT or the courts.
When deciding about an application, we take several factors into account:
- the risk to clients or to public confidence
- the disciplinary record of the person you want to employ, especially the court’s or the SDT’s findings
- evidence showing the person you want to employ has rehabilitated
- your firm's own regulatory record, including the records of its managers and other employees
- how well the person the firm wants to employ will be supervised.
Our approval is almost always subject to conditions. We use conditions to limit the risks to clients and public confidence, and adapt them to fit each of the circumstances of each case.
We look at applications carefully, on a case-by-case basis.
We usually only approve applications if we have received clear evidence of successful rehabilitation. The fact that time has passed does not by itself show that someone has rehabilitated. This can be shown through evidence that someone has served in a position of trust and responsibility outside the legal profession for several years, supported by character references.
Unless there are exceptional circumstances, we will not grant permission to employ anyone who has:
- been convicted of an offence involving dishonesty;
- been convicted of an offence which has resulted in a custodial (or equivalent) sentence; or
- had a finding of dishonesty made against them in civil, regulatory or disciplinary proceedings.
What you can expect from us
Once we have all of the information we need, we will assign the application to one of our officers.
Our officer looks at the application carefully, and then prepares a report recommending that it be approved or rejected. The officer sends their report to you and to the person you want to employ. Both you and the person you want to employ can respond to the report before we make a decision.
We aim to decide about each application we receive within 90 days.
Withdrawing an application
You can withdraw your application at any time before we make a decision.
If you do not respond promptly to our requests or if our questions go unanswered, we can decide that you have withdrawn your application.
You (not the person you want to employ) have the right to appeal our decision within 14 days of the date we notify you of the decision. Under section 41(3) of the Solicitors Act 1974, you can appeal to the High Court if you are not satisfied with any appeal decision we take.
We publish applications outcomes in line with our guidance on publishing regulatory and disciplinary decisions.
Example 1- grant
In 2004, a solicitor, Mr A, was convicted of supplying a class A drug and sentenced to 6 months imprisonment. The conviction was based on one incident. Mr A had pleaded guilty explaining he sometimes used cocaine and had supplied a small amount he had bought for his personal use.
In 2006 Mr A was struck off by the SDT in proceedings that he did not contest. In 2011 we received an application from a sole practitioner, Mr B, seeking to employ Mr A as a personal injury claims handler. The application confirmed that Mr A would have no contact with clients and he would be directly supervised by Mr B (who had 15 years’ practice experience and specialises in personal injury cases).
Mr A provided evidence of his rehabilitation and a number of positive references. We granted Mr B approval to employ Mr B on conditions including that Mr B carry out regular file reviews and audits of Mr A’s work and requiring notification to us of any changes to the structure or working arrangements within the firm.
Example 2 – refusal
Mr R was struck off the roll of solicitors by the SDT for misuse of client money. The SDT found he had been dishonest.
One month later, firm S applied to us for permission to employ Mr R as a part-time self-employed paralegal. Firm S provided us with details of Mr R’s proposed responsibilities and proposed supervision arrangements. Firm S confirmed that Mr R would have no contact with clients and his work will be confined to legal research and organising files.
We refused firm S permission to employ Mr R. We did not find any exceptional circumstances which would permit us to grant the application or that Mr R could demonstrate his rehabilitation in the few months since he was struck off. We considered that public confidence in the delivery of legal services would be severely damaged if permission were granted in this case.