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Banks, lending institutions and others
take solicitors' undertakings at their face
value and all parties rely on them to
facilitate solicitors and the clients of
solicitors in their financial and
commercial affairs. Anything that is
done to devalue the currency of
undertakings is a disservice to the
profession and to the public in general.
The file belongs to the client.
Once the fees and outlays of the first
solicitor have been paid, the solicitor
must hand over the file, documents,
papers, monies and all items to the
client. There is no obligation on the
client to nominate a solicitor to take up
the file; he is entitled to collect the file
himself once the fees are paid and there
are no outstanding undertakings.
The solicitor may, if he wishes, copy the
file, but this must be at his own expense.
If two clients were instructing the first
solicitor, but are not now instructing the
one solicitor, the consent of both clients
will be required before the original file is
handed to either. If no consent can be
obtained, the solicitor may copy the file
for both, at the clients' expense, and
retain the original, pending consent.
When a solicitor proposes to come on
record for a client, the appropriate
notice of change of solicitor to the
court, the opposite party and the
solicitor discharged must be filed and
served before the notice takes effect.
When an authority to transfer a file is
received by a solicitor, his instructions
are thereby terminated. However, if he is
on record in a litigation matter, his duty
to the court, as an officer of the court,
has not yet ceased. When the matter is
next before the court, if the second
solicitor is not attending, it might be
necessary as a mater of courtesy for the
first solicitor to attend at court although
that solicitor has no instructions at that
point.
It is completely unhelpful and
discourteous to a colleague if the first
and only communication he receives in
relation to his retainer being determined
is a notice of change of solicitor. As
indicated above, proper inquiries with
regard to outstanding costs and outlays,
and undertakings should be made.
At the conclusion of a litigation case if
a second solicitor recovers costs on a
party and party basis, which includes
the costs of work done by the first
solicitor, he is accountable to the first
solicitor for the appropriate portion of
those costs.
This is the case even if his own
solicitor/client costs exceed the total
amount of the party and party costs
recovered. This applies where the first
solicitor was not paid when the
instructions were terminated.
Proceeding without the file is not
recommended.
If an authority to a solicitor to act in a
matter is deemed to be irrevocable, a
second solicitor cannot proceed to act
without the first solicitor's consent. A
solicitor who fails to make inquiries
about outstanding undertakings runs a
risk of proceeding in a matter where the
first solicitor's retainer has not been
properly terminated.
Where an authority is revocable but the
first solicitor is exercising a lien on the
file, can the second solicitor proceed
without the file? Although in this
jurisdiction there is no specific
prohibition on a solicitor proceeding in a
matter without a file, a solicitor should
do so with caution. Most solicitors
would not, in fact, wish to proceed in a
matter until they had made arrangements
to ensure that the fees due to their
colleague were secured.
Clause 1.24 of the
Guide to professional
conduct of solicitors in Ireland
provides
that: ".... where a client discharges one
solicitor and engages the services of a
second solicitor, the second solicitor
should ensure, in his initial discussions
with the client, that the client fully
appreciates and understands the client's
obligation to pay all costs due for work
properly done by the first solicitor. The
second solicitor must endeavour to
ensure that such costs are discharged by
the client."
A solicitor who fails to make inquiries
with regard to costs and outlays would
have difficulty in demonstrating that he
had behaved in a proper professional
manner. A solicitor left with outstanding
liabilities, where no such inquiries were
made, would be justified in complaining
to the Law Society.
The solicitor first instructed is entitled to
pursue all legal remedies against the
client for the payment of the solicitor's
costs and outlays. The second solicitor
would, no doubt, prefer that payment
were made or other agreement in the
matter reached, rather than awaiting the
issue of proceedings against the client
and the incurring of further costs by the
client.
If a solicitor proceeds without a
complete file, he may be at some
handicap. He proceeds at his own risk in
respect of claims for negligence turning
on his decision to proceed.
An employee leaving a firm cannot,
without formal authority, take the
files of clients, even the files of clients
introduced by the employee.
All the clients of a firm are the clients of
that firm and the firm is responsible for
their affairs. By definition, they cannot
be the clients of an employee. Solicitor
employees sometimes have the mistaken
belief that because they introduce a
client to a firm, they are entitled when
they leave to bring the files of those
clients with them, without formal
authority. This is not correct. The usual
authority must be obtained from the
client and furnished to the firm, and the
usual formalities observed.
Attention is drawn to Clause 4 of the
Solicitors (Advertising) Regulations,
1988
(Statutory Instrument No 344 of
1988) which prohibits the touting by a
solicitor of the clients of another
solicitor.
If a partner leaves a firm, or the
partnership is dissolved, there should
be prompt notification to the clients of
the firm explaining to them that they
may choose to instruct whomsoever
they wish.
If there is a continuing firm, it is
recommended that files remain with the
continuing firm until the client directs
otherwise. (A sample letter of
notification is set out in the panel on
page 385.)
384