Ten Steps for the Transfer of Files
Guidance and Ethics
- A courteous request for the files and a prompt response are keys to a smooth handover.
- Solicitors have a right to exercise a lien on files and documents until fees are paid, but a lien can be set aside by order of the court or by direction of the Law Society.
- In considering the validity of a lien, the court can take into account who has terminated the retainer and, where the retainer has been terminated by the solicitor, may direct a solicitor to hand over the file on terms. (Ahern v Minister for Agriculture and Food, Laffoy J, 11 July 2008, unreported).
- A solicitor who is exercising a lien must issue a bill of costs as soon as reasonably possible.
- To protect the client’s interests and to facilitate payment, the first solicitor should consider transferring the file on receipt of a suitably worded undertaking.
- If an undertaking is offered and accepted, it is the recommended practice that all outlays paid by the first solicitor are discharged on the transfer of the file.
- The file cannot be handed over until satisfactory arrangements have been made in relation to any undertakings given by the first solicitor.
- A solicitor should not cooperate with a client who seeks to leave a solicitor with an outstanding undertaking.
- If instructions are accepted on a ‘no-foal, no-fee’ basis and the client terminates the retainer, the no-foal, no-fee arrangement is also terminated and the solicitor is entitled to be paid for work done to the date of termination.
- Proceeding without the file is not recommended.
For further information, please see the practice note (‘Transferring files between solicitors’, second edition) recently published by the Guidance and Ethics Committee on lawsociety.ie.