In early 2015, the Solicitors Regulation Authority (SRA) banned a cleaner from working in a law firm without its permission.
This situation followed on from a 2012 High Court decision against Murugan Gopalan (formerly known as Rajagopal Murugananthan) for the sum of £37,779.14 in favour of Harrow Solicitors & Advocates. Mr Gopalan had received this money when he was working as a cleaner. The money was stolen by another employee at the firm.
According to a report in the Law Society Gazette, the decision stated that Mr Gopalan was, “party to an act in relation to a legal practice which involved conduct on his part of such a nature that in the opinion of the [Law] Society it would be undesirable for him to be involved in a legal practice in any of the ways described in the [order].”
The order was made under section 43 or the Solicitors Act 1974. Under this section, the SRA has the power to regulate unqualified persons who work in the legal profession.
An unqualified person includes anyone who is not a qualified solicitor, and either has no legal qualification or a different legal qualification, for example, a barrister, licensed conveyancer, legal executive, notary public, receptionists, or, as in the case of Mr Gopalan, a cleaner.
The SRA can also regulate owners and managers of Legal Disciplinary Practices and Alternative Business Structures.
Section 43 Orders
The SRA can restrict a non-qualified staff member from working in a law firm without their prior written permission via an s43 Order. Also, the SRA can seek an s43 Order following conduct by a non-qualified person for actions they have undertaken overseas, for example in a European branch of a firm regulated by the body.
Section 43 provides for two situations where an s43 Order can be imposed, namely where the person:
- has been convicted of a criminal offence which is such that in the opinion of the SRA it would be undesirable for the person to be involved in a legal practice – s43(1)(a)
- has, in the opinion of the SRA occasioned or been a party to, with or without the connivance of a solicitor, an act or default in relation to a legal practice which involved conduct on his part of such a nature that in the opinion of the Society it would be undesirable for him to be involved in a legal practice – s43(1)(b)
The SRA can directly make an s43 Order, in cases where s43(1)(a) applies. However, in certain circumstances (e.g. where cross-examination is required to establish certain facts), an s43 Order will be referred by the SRA to the Solicitors Disciplinary Tribunal (SDT).
A criminal conviction will not always lead to an s43 Order being imposed. The SRA will consider various factors such as the seriousness and type of offence committed. If dishonesty is involved, it is more likely that an s43 Order will be imposed. The SRA will also take into account the conditions in which the criminal behaviour took place. It states:
“For example, we are also likely to consider it more undesirable for the person to be involved in a law firm we regulate, if the victim of the offence was vulnerable. This is because of the damage such an offence would cause to public confidence and the risk that the person would abuse any position of trust they were afforded by working in a law firm in the future.”
For an act of “undesirable conduct” to bring about an s43 Order, the conduct must have taken place in relation to a legal practice.
The term “undesirable” is given its ordinary meaning. However, the SRA may also consider the following factors when deciding on whether an s43 Order is appropriate:
- was the conduct counter to the client’s expectation of a trustworthy and reliable service?
- did the conduct demonstrate a serious lack of judgement given the non-qualified person’s position or role?
- does the conduct throw doubt on the individual’s ability to make sound and competent decisions in the client’s best interests?
- did the conduct demonstrate impropriety or unethical behaviour?
It is important to note that when an s43 Order is applied, there is a rebuttable presumption that there was a lack of supervision by the solicitors in the firm. Therefore, the SRA usually launches a parallel investigation to ensure the solicitors within the practice are complying with the Solicitors Code of Conduct 2011.
How we can help
If you are seeking to resist an s43 Order, our solicitors can advise and represent you. In addition, we can advise you regarding disciplinary action which may be considered by the SRA if you have unwittingly employed someone who is likely to be or is already subject to an s43 Order.
We have been helping legal professionals with professional disciplinary and regulatory hearings for over 20 years. If you have any questions relating to s43 Orders, please call us on 0151 909 2380 or complete our Free Online Enquiry and I will soon be in touch.