In October 2018, the High Court ordered a retrial after the Solicitors Disciplinary Tribunal (SDT) found Francisco Rodriguez-Purcet, the former head of marketing and business development at a now-defunct law firm (Tandem Law), guilty of dishonesty. It transpired that the Defendant had a long history of mental illness and was not given a chance to defend himself. The SDT’s decision led to a section 43 Order, which allows the SRA to regulate any non-qualified persons working in a law firm. A person subjected to a Section 43 Order can be prevented from being employed or remunerated by an SRA authorised body without the express written permission of the Solicitors Regulation Authority (SRA).
Section 43 Orders can result in the destruction of a promising career within the legal profession. Therefore, it is imperative to robustly defend an attempt to have such an order made against you.
In the case of Mr Rodriguez-Purcet, he had denied allegations of dishonesty, and his solicitor applied for an adjournment. However, despite medical evidence showing that the Defendant had a long history of mental illness, with current symptoms of moderately severe depression and severe anxiety, the hearing was only put back a day.
Mr Justice Holman, in giving his decision, said the SDT’s refusal for the request of a longer adjournment was ‘unjust’ and ‘wrong’.
The judge added: “They had medical evidence from a sufficiently qualified practitioner who had very recently examined the appellant. That evidence was clearly describing a significantly worsening situation in his very long diagnosed mental ill health. It clearly describes that his ability to participate properly in the hearing was impacted and impaired”.
Furthermore, Mr Rodriguez-Purcet’s medical assessment, submitted a week prior to the hearing, showed that having to participate properly in any hearing might trigger a relapse, and gave clear guidance to the SDT to wait for a full analysis of his condition.
Justice Holman stated that given the seriousness of the allegations, the Defendant must be given the opportunity to defend himself. Therefore, he ordered the section 43 Order to be set aside and requested a new hearing.
Can a Section 43 Order be removed?
If a section 43 Order has been made against you, you can seek to have it removed, so you can work in an organisation regulated by the SRA without your employer having to seek express permission from the regulator.
The test applied by the court when considering an application for revocation of a section 43 Order was set out by Justice Wilkie in the High Court case of SRA v Ali (2013) EWHC 2584:
“The right question (is) whether the s43 order remained necessary to protect the public interest and/or the reputation of the Society …. The s43 order has a regulatory function, not a penal function…. The purpose of the order is to safeguard the public and the Society’s reputation by ensuring that a person is currently only employed where a satisfactory level of supervision has been organised and for as long as that person requires such a level of supervision”
When assessing an application for the revocation of a section 43 Order, the SDT will not seek to conduct a rehearing into the initial facts which led to the order being made. Instead, it will consider whether the order is still required to safeguard the public and maintain confidence in the legal profession. Therefore, it is imperative you instruct an experienced solicitor to demonstrate to the tribunal that the test set out in SRA v Ali is satisfied.
However, the most crucial concern should be resisting a section 43 Order being made in the first place. In situations such as that concerning Mr Rodriguez-Purcet outlined above, a robust defence will ensure a fair trial will be conducted and provide the best chance of a positive outcome.
If you are seeking to resist a s43 Order, we 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 a 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 one of our team will soon be in touch..