The Gazette 1996

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. 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 A lien can be set aside by order of a court. Where a solicitor first

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. 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 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. the client to take up the file and documents. If two clients were GOOD PRACTICE

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 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 A lien can be set aside by a direction of the Law Society.

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

documents relating to the subject matter of the complaint (but not otherwise) to another solicitor

382