The Guidance & Ethics Committee helpline receives a large number of queries annually relating to best practice guidance on the transfer of files between solicitors. Likewise, disputes relating to the transfer of files between solicitors are a common occurrence. The Complaints & Client Relations Section of the Law Society received a large volume of complaints in respect of this issue directly from clients and solicitors, which complaints will now be addressed by the Legal Services Regulatory Authority.
It is hoped that this review and the issues of conduct which arise when a file is transferred, will lessen these disputes and problems considerably and ensure that the interests of the client, the first solicitor and the second solicitor are fairly balanced. This note reflects current policy.
The Guide to Good Professional Conduct of Solicitors, 3rd Edition was published in 2014. Clause 7.6 notes that a solicitor can opt, on receipt of a proper authority, to accept an undertaking from the second solicitor to discharge within a reasonable time properly drawn costs and outlays.
While most solicitors try to comply with this recommendation, its operation was found in certain cases not to be fair to the interests of the first solicitor. That solicitor has a right to be paid immediately for the work he has done. As with any other business, a solicitor in a firm decides the terms on which he will do business. Many considerations, not least the matter of cash flow, may dictate that the solicitor seeks immediate payment for work done.
The solicitor has a right at common law to exercise a lien on files and other documents until he is paid. This right must be fully recognised. However, that right must also be balanced with the rights of a client under the General Data Protection Regulation (as to which see below).
Who Funds Legal Services?
When a client instructs a solicitor, he is entering into a contract for legal services in return for payment. As with all contracts for services, the client is liable for the fees. As soon as a solicitor starts work on any matter, fees become due. The solicitor then has a choice as to whether he funds the action in full - that is, whether he allows a credit until the conclusion of the case, or not. If he does not wish to fund the action, he will seek funds in advance. In the latter case, the client may provide the funds from his own resources or may ask a bank or other lender to fund the matter. Alternatively, the solicitor may agree to fund the matter on an interim basis, furnishing interim bills from time to time as the matter progresses.
Unless he is agreeable to do so, there is no reason why the first solicitor should continue to fund a case after the client has left that solicitor.
When a file transfers to a second solicitor, he in turn must decide who will fund the matter. He may decide to fund the matter fully himself by paying the costs and outlay of the first solicitor and also by awaiting payment of his own fees and outlays until the conclusion of the matter. If he does not wish to fund the matter, the client will be required to do so, and, again, may seek funds from a bank or other lender.
If a solicitor is approached by a client who wishes to transfer his business from another solicitor, the solicitor approached should carefully explain the issue of the funding of the matter to the client and explore whether the client is in a position financially to transfer from the first solicitor, so that the best interests of the client are not prejudiced.
In other jurisdictions where comprehensive legal aid schemes are in place, the State funds the fees of both solicitors who thereby have security for their fees. When a file is transferred to a new solicitor, the only issue in respect of fees is the transfer of the Legal Aid Certificate.
The legal position
The relationship of a client and a solicitor may, prima facie, be terminated at will. Merely calling an authority to act irrevocable does not make it so.
The relationship of a client and a solicitor is the relationship of a principal and an agent and its termination is governed by law. This general principal governs most situations where a client seeks to determine a retainer.
Where the first solicitor has undertaken a personal liability on behalf of the client, for instance, if a solicitor has given an undertaking, the client cannot determine the retainer without the first solicitor's consent.
The law provides that in circumstances where an agent has undertaken a personal liability on behalf of a principal, the agent's authority is irrevocable. However, the agent/solicitor may decide to consent to the determination of his retainer, subject to a formal release of the undertaking by the recipient of the undertaking.
In practice, before giving an undertaking, solicitors should seek a specific written irrevocable authority from the client for the giving of the undertaking itself. This authority is given for the purposes of securing a benefit for the client. There is a further general principle which confirms that such authorities are to be deemed irrevocable.
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 Legal Services Regulatory Authority has not been asked to intervene, it might not be in the best interest of the solicitor or the client for the solicitor 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 might be deemed unprofessional conduct 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 if there is money outstanding on another file, even if his bill has been paid on the particular file which is being sought. However, he cannot exercise a lien on a Will or documents held on accountable receipt. It is also important to note that the exercise of a lien does not override the rights which a client may have under the General Data Protection Regulation (as to which see below).
The courts have adopted a different approach where the lien has been terminated by the solicitor. In such cases the court may direct the original solicitor to hand over the papers to the client's new solicitor against an undertaking by the new solicitor to preserve the lien of the original solicitor.
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 second solicitor can issue a special summons under the Solicitors and Attorneys Act requiring the production of the file and other papers.
Order 53, Rule 17 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 or respondents (or any of them) alleging that he himself or she herself or they themselves has or have a claim for costs, the President may make a provision for the payment or security thereof or the protection of the lien (if any) of the respondent or respondents (or any of them) as the President thinks 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 Legal Services Regulatory Authority.
A lien can also be set aside by a direction of the Legal Services Regulatory Authority pursuant to the provisions of Section 60 of the Legal Services Regulation Act 2015.
Section 60(6) provides that:
“The Authority shall consider any statement furnished to it pursuant to subsection (5) and, where it considers that the legal services provided by the legal practitioner were of an inadequate standard, and that it is, having regard to all the circumstances concerned, appropriate to do so, the Authority may direct the legal practitioner to do one or more of the following:”
One of the options set out thereafter is:
“(c) transfer any documents relating to the subject matter of the complaint to another legal practitioner nominated by the client, subject to such terms and conditions as the Authority may consider appropriate having regard to the existence of any right to possession or retention of any of the documents concerned vested in the legal practitioner to whom the direction is issued;”
It is within the context of the law, as outlined, that proper procedures and good practice must be considered.
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 preparing his bill of costs immediately. The first solicitor has a professional duty to furnish the client or his solicitor with the bill of costs as soon as reasonably possible. He may wish to have the costs drawn by a costs drawer. If he does so, he should refer his file to the costs drawer immediately and ensure that the matter receives prompt attention. The fees of the costs drawer are not chargeable to the client.
A solicitor is not entitled to delay drawing his bill of costs until he obtains an undertaking in respect of the payment of those costs, even if he is only seeking an undertaking to pay the costs when agreed or adjudicated.
If there is delay in furnishing the bill of costs, the smooth transition of the matter between the two solicitors is unlikely to be accomplished.
Cost may be agreed, arbitrated or adjudicated.
When the bill of costs is furnished to the client or his solicitor, the amount may be agreed immediately. Alternatively, the client may instruct the second solicitor to raise queries in relation to the bill. Costs may ultimately be agreed or the matter may be referred to adjudication.
Another option would be for both solicitors to agree to refer the matter to one nominated costs drawer with an agreement that the fee nominated by the costs drawer will be accepted by all parties.
It is sometimes asked how a fee can be agreed in litigation matters when liability has not been determined and it is not known at that point for how much the case will settle. There is no difficulty in valuing a solicitor's work at any point, although the figure he receives if he is paid at the determination of his retainer may differ substantially, being either greater or lesser, from the proportion of the total fee he would have received had he waited to be paid at the conclusion of the case.
"No foal, no fee" arrangements determine if the client moves to another solicitor.
The first solicitor may have accepted instructions on a contingency fee basis, which provided that the solicitor would be paid only on the successful conclusion of the case. This arrangement terminates if the client decided to move to another solicitor. It can be implied in the "no foal, no fee" arrangement that it is a term of such an arrangement that the solicitor will continue to have prosecution of the case. When the client moves to another solicitor, the first solicitor is entitled to be paid costs and outlays for the work done to the date of termination of his instructions.
The first solicitor may opt to accept an undertaking in respect of the payment of costs as alternative security to a lien.
Particularly in litigation matters in cases where liability is not an issue, the solicitor first instructed may take the view that he is happy to accept an undertaking in respect of his fees in substitution for his solicitor's lien. If the first solicitor is agreeable in principle to accept such an undertaking, the terms of undertaking are a matter for negotiation and agreement. It would be unlikely that an undertaking which would be qualified so that payment would be paid only on the successful conclusion of the case, or an undertaking which did not require payment by a certain date, would represent a sufficient security for the first solicitor.
The solicitors may agree that a proportion of the fees would be paid immediately, the balance to be secured by a suitable undertaking.
All outlays paid should be refunded immediately to the first solicitor.
Even in cases where an undertaking in respect of the payment of his costs is accepted by the first solicitor, it is recommended practice that all outlays paid by the first solicitor are refunded immediately.
The Law Society has a general recommendation in respect of medical reports that the fees for such reports if not paid before receipt should be paid on receipt. It is recommended that the fee should not remain outstanding for more than 14 days after receipt of the report. Accordingly, when a client moves to a new solicitor, if medical report fees or other report fees have been incurred by the first solicitor but not paid, the doctor or other professional should be contacted and his consent obtained to the use of the reports. It would not be appropriate for a solicitor to use medical and other reports which had not been paid for without such consent.
If counsel has been briefed and the second solicitor is retaining the services of the same counsel, counsel will usually agree to await payment until the conclusion of the case. However, if that counsel is not being briefed, his fees should be paid immediately. Otherwise, the solicitor first instructed would be left in a difficulty in that he has a professional duty to try to ensure that all counsel's fees are paid.
The first solicitor should be released from undertakings furnished to third parties.
As already discussed, where the first solicitor has furnished an undertaking to a third party, the client's instructions to the first solicitor are irrevocable, without the first solicitor's consent to the termination of the retainer. If the first solicitor consents, and if it is appropriate for the second solicitor to do so, he should, with the consent of the third party, substitute his own undertaking for that of the first solicitor to enable the release of the first solicitor's liability to the third party.
If this is not appropriate because, for instance, the undertaking was given imprudently by the first solicitor, both solicitors should liaise with the third party to ensure that the third party is put as near as possible in the position which that party would have been in had there been compliance with the undertaking.
No solicitor should co-operate with a client who seeks to leave a solicitor with an outstanding undertaking, contrary to law.
It is a serious matter if a client seeks to walk away from his responsibility in contravention of an agreement with the solicitor first instructed. Co-operation on the part of the solicitor subsequently instructed might, depending on the instructions, be deemed to be professional misconduct.
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 and there are no outstanding undertakings, the solicitor must hand over the file, documents, papers, monies and all items to 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.
Documents, letters and file notes prepared by the solicitor for his own benefit, and for which he has not charged the client or does not intend to charge the client, belong to the previous solicitor and may be retained by him. Solicitors are advised of their obligations to retain a copy of the file for, at minimum, the relevant statutory periods as outlined in the practice note Data Retention and Destruction of Paper and Electronic Files. A solicitor, who wishes to copy the file, does so 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 matter 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.
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.
Section 7.6 of the Guide to Good Professional Conduct of Solicitors, 3rd Edition 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 will usually endeavour to ensure that such costs are discharged by the client….."
A solicitor who fails to make inquiries with regard to the costs and outlays of the first solicitor 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, may be justified in complaining to the Legal Services Regulatory Authority.
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 client may choose whomever they wish to instruct, however the position remains that the usual authority must be obtained from the client and furnished to the firm, and the usual formalities observed.
If a partner leaves a firm, or the partnership is dissolved, the transfer of files is a matter for agreement between the former partners, subject to the wishes of the client.
If there is a continuing firm, it is recommended that files remain with the continuing firm until the client directs otherwise.
Files should never be a pawn in disputes between solicitors
While a decision by a client to leave a firm may occasionally be the subject of relief, more usually it is a matter of upset for the first solicitor if the solicitor believes he has been giving a good service to the client. However, the reality is that clients transfer their business from one solicitor to another, as they are entitled to do, for many and diverse reasons. If the departure of a client is in the context of a bigger dispute between solicitors - for example, where an employee has left to set up a firm in competition with the first solicitor, or where a partnership is dissolving in dispute - solicitors must deal with the matter of the handover of files objectively. While it is fully appreciated that this may be a time of great upset in a firm, the transfer of files should proceed subject to the usual formalities and cannot be an issue in the overall dispute.
Once an authority is received, the first solicitor ceases to have instructions. The client is then the client of another solicitor.
On receipt of an authority for the transfer of a file, there is no objection to a solicitor first instructed in a matter approaching the client to seek an explanation of the reasons for the determination of the retainer. The clients may or may not wish to respond and are under no obligation to do so. They may respond through their new solicitors. Such inquiries should not in any way delay the furnishing of the bill of costs or the transfer of the file when the costs have been paid.
However, any approach by the first solicitor to the client to seek the return of their business, which the client might view as intimidating or as harassment, would be wholly unacceptable. Attempts by the first solicitor to convince a client that the second solicitor has behaved unprofessionally in "taking" or touting the client away are completely unhelpful.
The client’s only concern will be to ensure that there is no disruption to their business. They will undoubtedly be upset and bewildered if they are drawn into disputes between two solicitors in relation to professional conduct. By airing these issues in public, the profession is brought into disrepute.
GDPR and Request for access to data on a Client’s file.
The General Data Protection Regulation (EU) 2016/679 (the “GDPR”) came into effect on 25 May 2018. The GDPR, along with the Data Protection Act 2018, is the regulatory and legislative framework enacted to protect the rights of the individual and their personal data.
The exercise of a lien will not override the rights which a client has under the GDPR. The two most relevant rights are:
- The access right which applies under Article 15 of the GDPR; and
- The data portability right which applies under Article 20 of the GDPR.
These rights apply where a firm acts as a “controller” of the personal data in question. This will be the case, for example, where the individual data subject is a client or former client of the firm. As this document relates to the transfer of files between solicitors, the details on rights of access and data portability set out in this document assume that the requester is a client who is also seeking the transfer of his file from one solicitor to another.
Article 15 – Right of Access
Under Article 15 of the GDPR, an individual has a right to a copy of their personal data which held by any firm (acting as a controller) as long as such data is held either (i) electronically, such as on a computer system (ii) on a manual file, as long as the file forms part of a “filing system”, i.e. where the file is structured according to specific criteria which makes the information relating to the individual readily accessible, e.g. a file with an individual’s name on the front of the file.
Firms may ask clients for evidence of identity upon a data access request. The Data Protection Commission’s website provides guidance and information on the rights of an individual, the definition of personal data and the responsibilities of a controller.
Data access requests should be completed within one month. In very limited circumstances, this time period may be extended by up to two further months.
A Solicitor’s Lien
If a solicitor is exercising a common law lien on a client’s file they are still required to fulfil a data access request. Solicitors who have a query on the definition of personal data can refer to guidance provided by the Data Protection Commission.
It is worth noting that compliance with an access request does not automatically mean that a solicitor is required to copy an entire file and hand it over to the requester. Instead, what is required is to provide a copy of personal data which relates to the requester. Therefore, a solicitor may provide a copy of personal data but will exclude anything on the file which relates to third parties (subject to the comments below on personal data which relates to both the requester and another individual) or any documents or records which do not constitute personal data at all (e.g. information relating to companies rather than the individual himself).
Information which must be provided to the requester in a data access request
Article 15 of the GDPR states that a requester is entitled to the following information in writing on foot of a data request:
- Confirmation of whether or not personal data concerning the requester is being processed.
- Where personal data concerning the requester is being processed, a copy of the requester’s personal data.
- Where personal data concerning the requester is being processed, other additional information as follows:
- the purpose(s) of the processing;
- the categories of personal data;
- any recipient(s) or categories of recipient(s) of the personal data to whom the personal data has or will be disclosed, in particular recipients in third countries or international organisations and information about appropriate safeguards;
- The retention periods for personal data or, if that is not possible, the criteria used to determine the retention periods;
Firms must also provide the following information to the requester as part of the access request:
- The existence of the following rights –
- Right to rectification
- Right to erasure
iii. Right to restrict processing
- Right to object – and to request these from the controller.
- The right of the requester to lodge a complaint with the Data Protection Commission.
- Where personal data is not collected from the data subject, any available information as to the source of the personal data.
- The existence of automated decision making, including profiling and meaningful information about how decisions are made, the significance and the consequences of processing.
Information should be provided in clear, easily understood language in writing or any other format requested by the requester.
With regard to the above, it is likely that a requester will be more interested in 2 above (receiving a copy of the requester’s personal data). A firm should be able to comply with the other requirements at 1 and 3 to 8 above by providing a copy of the data protection notice which the firm should in any event be providing to clients in accordance with Article 13 of the GDPR.
A firm, as a controller, must provide the information for free. However, if they believe that the data access request or requests are excessive or unfounded (for example they receive repeated unnecessary requests) they may; a) charge a fee for their administrative costs in fulfilling the request or b)they may choose not to act on the request(s). The onus remains upon the firm as controller to demonstrate why the request is excessive or unfounded.
If a firm fails to comply with a data access request, individuals are entitled to make a complaint to the Data Protection Commission and there are potentially severe consequences for non-compliance, including potential enforcement notices, adverse decisions or fines.
Restrictions on exercising a data subject’s rights
Sections 60 and 162 of the Data Protection Act 2018 set out a limited number of exemptions from the obligation to provide a copy of personal data to a requester. In addition, there is no obligation to provide non-personal data or personal data relating to a third party on foot of a data access request (subject to the comments below on personal data which relates to both the requester and another individual).
Dealing with ‘Joint’ or ‘Mixed’ personal data
There may be circumstances where the personal data in question relates not only to the requester but also to another individual. An example might be dealings on a joint account in the name of two individuals. In such circumstances, a solicitor may need to consider whether it is possible to redact the name of the third party whilst still providing the requester with what also amounts to their own personal data or whether the solicitor might be able to provide the data in unredacted form (i.e. without redacting the name of the other individual) on the grounds that the solicitor is satisfied that the release of the data will not in any way affect the rights and freedoms of that other individual and further that the release of the data will not come as a surprise to the other individual.
Ideally, the solicitor will have dealt with the matter of joint/mixed personal data when the file was first opened (e.g. by notifying both individuals that if an access request is made, any joint personal data will be released without redaction to the requester).
Solicitors should be cognisant of the rights of each individual to access their personal data and it is the responsibility of each firm to fulfil their obligations as controllers. Further information on data requests can be accessed through the Law Society website.
Article 20 – Data Portability Right
Under Article 20 of the GDPR, an individual has the right to receive personal data concerning him or her, which he or she has provided to the controller, in a commonly used and machine readable format, and has the right to transmit this data to another controller e.g. to another firm. The data subject also has the right to ask to have the personal data transmitted directly by the first law firm to the second law firm.
This data portability right also overrides the solicitor’s lien, but it is subject to a number of limitations:
- The right only applies to personal data and not to any other data on the client file;
- The right only applies to personal data which the data subject provided to the controller, i.e. not to other data which was created by the firm itself in the context of providing advice;
- The right applies where the legal basis for processing the personal data is (i) the consent of the data subject or (ii) the performance of a contract with the data subject. Where an alternative legal basis for processing is relied on by the firm (e.g. legitimate interests (for personal data) or processing necessary for the establishment, exercise or defence of legal claims (for sensitive data)), then the data portability right does not apply.
Where applicable, data portability requests should be completed within one month. In very limited circumstances this time period may be extended by up to two further months. The exemptions in Section 60 and 162 of the Data Protection Act 2018 also apply to data portability requests.
If a firm fails to comply with a data portability request, individuals are entitled to make a complaint to the Data Protection Commission and there are potentially severe consequences for non-compliance, including potential enforcement notices, adverse decisions or fines.
This practice note is intended as best practice guidance only and is not suitable for professional advice. No responsibility is accepted for errors, or omissions, howsoever arising.