Does a Law Firm need to perform a DBS Check on All staff?
As most of you will know The Law Society has recently provided an extensive update on Anti-Money Laundering Guidance. This has raised further questions about practices and the checks that they need to carry out.
The new guidance explains the level and type of checks and screenings that should be in place, especially for all Beneficial Owners, Officers and Managers (BOOMs). All BOOMs need to be screened before being approved into an establishment. A DBS check is vitally important for firms to check for criminal history.
It is certainly the case when notifying the SRA of a ‘Manager’ that the application will not be progressed until the DBS check is complete.
The question we are often asked is what is the actual and full requirement of firms to undertake a DBS check and should one be requested on ALL Staff?
Principally there are 5 categories of people in any firm which are:
- Qualified Staff and Fee Earners
- Unqualified Fee Earnings Staff
- Practice Managers and Accounts
- Support Staff
The guidance states that checks are “relevant to the individual’s ability to carry out their functions effectively and in compliance with the firm’s obligations under the Regulations.”
The new guidance further suggests that these crucial checks although done on appointment to a position at the firm should also be done “during employment on a risk-sensitive basis.” Have you done your checks?
The amount of verification of information is dependent on the individual’s role at the firm and their relevance to the firm’s compliance with the regulations. DBS checks are therefore important and critical for firms, especially when individuals are involved in influencing and managing the firm or handling client and firm money.
The checks and screening process fundamentally check the following key points:
- Skills, knowledge, and expertise
- Conduct and integrity.
It is for each firm to ultimately decide whether a DBS check is necessary and at what level they will insist this occurs.
If a firm decides not to undertake a DBS check on a member of staff and they are latterly found to have a criminal record that would put doubt on their employment or ability to work in a law firm, criticism is highly likely to be levied by the regulator.
In addition to an individual’s criminal record, firms must also ensure that they have established an individual’s general position and how this may affect their employment. For example: –
- Are they currently under any SRA restrictions or sanctions?
- Are they or the firm they previously worked with subject to an outstanding investigation of SRA enquiry?
- Are they responsible or have they been involved in any negligence claims?
- For qualified staff, is their practising certificate up to date and are their details on MySRA up to date.
Failure to ask these basic questions can result in regulatory breaches.
About The Strategic Partner and Our Services
At The Strategic Partner, we work with firms and their COLPs and COFAs to assist them with the management of risk, compliance and regulation through our compliance solutions, or we can provide individual training and guidance.
We always provide bespoke services as we recognise that every law firm is different. It is essential to provide guidance, consultancy, written documents, training, and procedures that meet the exact requirement of the firm to overcome rather than provision templated solutions.