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The law recognises that negligence or
incompetence on the part of the
principal should be taken into account
in considering whether an irrevocable
authority should stand.
In addition to this legal position, where a
solicitor believes that he may have
committed an error in the course of
transacting a client's business, even if
the court or the Law Society has not
been asked to intervene, it might not be
in a solicitor's best interest to continue
to act in a matter. Subject to the
direction of the solicitor's professional
indemnity insurers, it might be better
that the file be transferred to another
solicitor without delay, and the matter
dealt with by a different solicitor, so that
any potential claim is limited.
It would clearly be unprofessional for a
second solicitor to state, in order to
attract business, that another solicitor
had been less than diligent, or actually
negligent, unless the second solicitor had
evidence of this.
The common law allows a solicitor to
exercise a lien on a client's file until
his costs and outlays have been paid.
Any business which provides a service
to clients over a continuing period is
vulnerable in respect of the payment of
fees, unless the business seeks security
for the fees. The common law
recognised the vulnerability of the
solicitor's position and provided security
for him by allowing the exercise of a
lien.
It follows that a solicitor is not obliged
to allow inspection of a file if his costs
and outlays have not been paid. The
solicitor can exercise his lien on all files,
documents and monies received, even if
his bill has been paid on a particular file
which is being sought. However, he
cannot exercise a lien on a will or
documents held on accountable receipt.
A lien can be set aside by order of a
court. Where a solicitor first
instructed in a matter has delayed
furnishing a bill of costs or, there
being no costs or outlays outstanding,
has failed to transfer the file, the
solicitor secondly instructed can issue
a special summons under the
Solicitors and Attorneys Act
requiring
the production of the file and other
papers.
Order 53, Rule 22 of the Rules of the
Superior Courts which deals with an
application by a client of a solicitor for,
inter alia,
the delivery of a cash account
provides that: "In the event of the
respondent alleging that he has a claim
for costs, the court may make such
provision for the payment or security
thereof or the protection of the
respondent's lien (if any) as the court
may think fit."
The judiciary, while upholding a
solicitor's lien, have been very critical
where there has been delay by the first
solicitor in furnishing his bill of costs.
A lien can be set aside by a direction
of the Law Society.
A lien can also be set aside by a
direction of the Law Society pursuant to
the provision of Section 8 of the
Solicitors (Amendment) Act, 1994.
The
Solicitors Acts 1954-1994
provides
for the investigation by the Law Society
of complaints by clients against
solicitors. The Registrar's Committee is
charged with exercising the relevant
powers as set out in Section 8 (1) (e)
which provides as follows:
"Where the Society receive a complaint
from a client of a solicitor, or from any
person on behalf of such client, alleging
that the legal services provided or
purported to have been provided by that
solicitor in connection with any matter
in which he or his firm had been
instructed by the client were inadequate
in any material respect and were not of
the quality that could reasonably be
expected of him as a solicitor or a firm
of solicitors, then the Society, unless
they are satisfied that the complaint is
frivolous or vexatious, shall investigate
the complaint and shall take all
appropriate steps to resolve the matter
by agreement between the parties
concerned and may, if they think fit,
following investigation of the complaint,
do one or more of the following things,
namely:
(e) direct the solicitor to transfer any
documents relating to the subject
matter of the complaint (but not
otherwise) to another solicitor
nominated by the client or by the
Society with the consent of the
client, subject to such terms and
conditions as the Society may deem
appropriate having regard to the
circumstances, including the
existence of any right to possession
or retention of such documents or
any of them vested in the first-
mentioned solicitor or in any other
person."
It is within the context of the law, as
outlined, that proper procedures and
good practice must be considered.
GOOD PRACTICE
A courteous request for the files and a
prompt response are the keys for a
smooth handover of the files between
solicitors.
When a solicitor accepts instructions in a
matter where another solicitor has
previously been instructed, the solicitor
should obtain a written authority from
the client to take up the file and
documents. If two clients were
instructing the first solicitor, both clients
should sign the authority. If the client
was a company, the person signing
should be duly authorised by the
company to do so. The second solicitor
should then furnish the authority to the
first solicitor with a courteous request
for the papers.
The second solicitor should also inquire
whether there are costs and outlays due
and, if so, request that the first solicitor
furnish his bill of costs. The second
solicitor should also inquire about
undertakings furnished to third parties
and request copies of any such
undertakings.
Once the authority is received, all the
necessary steps for the transfer of files
and other documentation should be
taken without delay so that the interests
of the client are protected.
If costs are due, a bill of costs should
be furnished without delay.
On receipt of an authority to hand over a
file to another solicitor, the solicitor who
had first been instructed should
acknowledge receipt of the authority
and, if costs are due, indicate that he is
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