Policy statement by the compliance board of the Law Society
Applications for permission to employ or remunerate under sections 41 and 43 of the Solicitors Act 1974
The Law Society has issued this policy statement to assist applicants seeking permission to employ or remunerate a person who is subject to section 41 or section 43 of the Solicitors Act 1974. To avoid repetition, references to employment in this policy shall be read as also including arrangements to remunerate. This policy will be reviewed from time to time.
The Law Society's duty is to ensure that public confidence in the administration of justice and the provision of legal services is maintained and that the interests of clients are protected. Permission to employ may be granted, subject to appropriate conditions, provided that The Law Society is satisfied that the proposed employment will not put that confidence or the interests of clients at risk.
The Law Society will not normally grant permission to employ any person who has been convicted of an offence involving dishonesty or which has resulted in a custodial (or equivalent) sentence, or against whom a finding of dishonesty has been made in civil, regulatory or disciplinary proceedings. Permission may be granted on an interim basis to accommodate an appeal by the proposed employee against conviction or other findings.
If, in exceptional circumstances, The Law Society permits the employment of a person whose conduct has previously been found dishonest, it is likely do so only on the basis that clear evidence is produced of successful rehabilitation. This might include, for example, evidence of service in a position of trust and responsibility outside the profession over a period of several years, supported by character references.
The fact that the Law Society will not usually permit the employment of a person whose conduct has previously been found dishonest should not be interpreted as an indication that permission will be granted in cases when there is no dishonesty finding. Orders which cause people to be subject to section 41 or 43 are not made lightly and the Society will be concerned robustly to ensure that clients' interests are fully protected and that public confidence in the profession and the administration of justice is not compromised.
The Law Society will not usually permit a person who is subject to section 41 or 43 of the Solicitors Act 1974 to be employed by the firm where he or she was working at the time of the conduct which resulted in adverse findings against him or her, or by a firm having a substantially similar composition, or operating under the same name or from the same premises.
The Law Society will always give proper consideration to any recommendations made by the Court or the Solicitors Disciplinary Tribunal.
In order to give proper consideration to any application, The Law Society will require sight of a job description, setting out the individual's proposed duties and responsibilities, together with full details of the supervision arrangements.
By making an application for permission, the applicant recognises and agrees that:
The Law Society may require reasonable access to its staff and premises for the purposes of monitoring compliance with the terms of the permitted employment and to ensure that the interests of clients are not being adversely affected.
The Law Society may disclose the application from the firm, any documents submitted in support and any reports prepared by the Society to any person from whom the Society reasonably seeks information about or comments on the proposal. This will include, but is not limited to, the local Law Society for the area in which the proposed employee will work or where the proposed employee formerly worked.
The Law Society may disclose full details of approved applications, including the documents referred to in 9.2 above, and any conditions, to any person when the Society considers that it is in the public interest to do so.
When permission is granted it will almost always be subject to conditions. These will vary according to the particular circumstances. Examples of conditions frequently imposed are that the person in respect of whom permission is granted:
- will not have his or her own caseload and will not take instructions from or give advice to clients.
- will not be a signatory to any office or client account cheque, and will have no responsibility for clients' monies or for the firm's accounts.
- will not undertake advocacy in courts or tribunals either in public or private.
- will be permitted only to undertake specific types of legal work, or prohibited from undertaking specific types of legal work.
- shall not be named on the firm's headed notepaper, website, publicity material or in the firm's name.
All approvals granted will be subject to conditions that:
- Any proposed variation in the terms of the job description or supervision arrangements must be notified to the Regulation Unit in the Compliance Directorate of The Law Society in advance of the change taking place and that the variation must not take place unless and until permission is granted.
- The permission and conditions are subject to review at the absolute discretion of The Law Society.