QUESTION OF ETHICS

Q My firm does immigration work.

An individual has asked me to take him on as an outdoor clerk.

He is not a solicitor but has good knowledge and experience of immigration law and practice.

He would like to work on a freelance basis (under a contract for services) as he wishes also to do similar work for other local firms.

Are there any particular issues which I need to bear in mind?

A In principle there is no reason why you should not agree.

However, you should refer to the guidance issued by the Law Society's standards board on supervision and obtaining work when providing immigration services, particularly paragraph 4 concerning supervision of staff in a solicitors' practice.

Solicitor principals, as a matter of professional conduct, must ensure that staff (whether employed under a contract of service or freelance) are competent to carry out the work and are appropriately supervised.

The guidance highlights concerns about the conduct of some freelance clerks and also warns of the dangers of a solicitor being asked to supervise the work of a non-qualified immigration adviser who is not a member of the solicitor's own firm (that is, someone who is not even a freelance outdoor clerk).

The Immigration and Asylum Act 1999 requires (broadly) that immigration work is done or supervised only by people registered with the Office of the Immigration Services Commissioner (OISC) or by solicitors (or members of other designated professional bodies).

All solicitors' staff (whether employees or freelance) are able to carry out immigration work, provided they are supervised by a solicitor or other person qualified under the Act.

If your man works for a variety of solicitors, he can undertake immigration work if supervised by each of those firms in respect of the clients of those firms.

If, however, he also works for non-solicitor immigration advisers, or carries out work on his own account, then he could not successfully claim to be supervised by a solicitor in respect of that work, so he may need to become OISC registered to avoid committing a criminal offence under the Act.

You should also obtain his consent to check with the OISC whether anything adverse is known about him and obtain references before taking him on.

Question of ethics is compiled by the Law Society's professional ethics guidance team.

Send questions to Austin O'Malley, the Law Society, Ipsley Court, Berrington Close, Redditch B98 0TD; DX 19114 Redditch.