The Gazette 1996

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. 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.) If a solicitor proceeds without a complete file, he may be at some

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. 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 file belongs to the client. 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 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 without the file? Although in this jurisdiction there is no specific

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