Knowing how to go about approaching your first legal file (or files) with a minimum of risk, especially if your first file is inherited, can be a troublesome process for new lawyers. Below is an article written by Chris Hargreaves (me) and Rebecca Wilson from McInnes Wilson lawyers. The article has appeared in the Queensland Law Society journal, Proctor, and in the New South Wales Law Society Journal.
How to Catch an Egg Without Breaking It – Your First Legal File
Inheriting existing files can be daunting, particularly if you’re a junior lawyer. There may be masses of documents as well as complex issues to be rapidly understood.
While this article can’t consider all of the possible issues to consider when taking over the conduct of a file, here are five areas that might help you bring the necessary tasks into focus.
1. Read the file from start to finish
Taking over the conduct of a legal file is similar to joining a conversation when someone is halfway through telling a story. You may be able to understand what they are saying, but you don’t know why they are saying it, nor could you advise someone how the story is likely to end.
Fortunately, the file is (or should be) a record of the conversation that you can use to get up to speed. While the task may be laborious, reviewing a file in its entirety is important because:
(a) It is the best way to ensure you know where each party has come from, and how and why your client’s case has evolved.
(b) You can identify issues that may have been previously overlooked.
(c) You can identify ‘loose ends’, such as requests for documents or information that were never answered.
The immediate question will spring to mind – can I charge for this? Ultimately that’s a question you need to ask your supervising partner. Don’t be surprised if the answer is ‘no’.
Sometimes reviewing an entire file may not be possible due to cost or time constraints (or your supervisor tells you not to). In that case you’ll just have to learn on the fly.
2. Identify critical dates
Critical dates generally fall into three categories:
(a) dates involving your client’s opportunities and obligations
These include option expiries, limitation periods and dates by which documents must be filed and/or served. It can be helpful to create a list of procedural requirements that apply to your matter and record the dates on which the requirements were or will need to be satisfied.
(b) appointments and other attendance dates
It is important to check that your client has been advised of any meetings and is available. If the client was advised a long time ago, check they are still available when the date draws near.
(c) client management dates
If some time has passed since the client was last contacted, their circumstances may have changed or new information may have surfaced. Regular contact also promotes a good solicitor/client relationship.
In any event, if you are running the file you will need to be introduced to the client at some point and that should be as soon as practicable after taking over the file.
3. Check that the firm’s obligations to the client have been fulfilled
When you take over the conduct of a file, it is important to consider your relationship with the client, including:
(a) Is there a ‘successive client’ conflict?
You may have acted for another party in the matter in the past. The duty of confidentiality you owe to your former clients extends beyond the termination of the retainer, and you need to satisfy yourself that your personal involvement is appropriate.
(b) Does the client know their solicitor has changed?
If relevant, your firm should contact your client to advise them a new solicitor has taken over their matter. This helps to maintain the client’s trust in their legal representative. It also avoids the possible situation where the first call you have to make to your client is to both introduce yourself and tell them that something bad has happened on their file.
(c) Is the retainer accurate and up to date, and has costs disclosure been made?
Check the date that the costs disclosure was made, check the estimate, check the scope of work, and check the rates. These are fundamentals and should be part of every file you see, run and work on. If you have any questions about the accuracy of any of these matters, you should immediately raise it with your supervising partner.
You must also ensure that written disclosure of the cost of your legal services as mandated by Part 3.4 Division 3 Legal Profession Act 2007 (Qld) has been provided to the client or associated third-party payer.
4. Check that the obligations to the court and other parties have been fulfilled
If you take over a litigated matter, a Notice of Change of Solicitor must be filed and served on the other parties as soon as practicable.1 It is best to do this once you are certain you have been properly retained and there are arrangements in place for the payment of your professional fees.
In addition, it is prudent to check compliance with other duties including the duty of disclosure pursuant to Chapter 7, Part 1 Uniform Civil Procedure Rules 1999 (Qld).
A search of the court file will also tell you if you are missing any critical court documents (directions orders, applications for judgment or other matters of importance), which you can then obtain to fill in any blanks.
In litigated, pre-litigated, and non-contentious matters, it is also important to check compliance with any relevant legislation regulating the conduct of the matter such as the Personal Injuries Proceedings Act 2002 (Qld), Motor Accident Insurance Act 1994 (Qld), and Workers’ Compensation and Rehabilitation Act 2003 (Qld).
5. Check that firm file maintenance requirements have been satisfied
Firms develop file maintenance standards to standardise practices across the firm and reduce the risk of negligence. If your firm has checklists that can apply to your matter, review the file against those checklists to ensure your predecessor has maintained the file appropriately. This is also important when inheriting files from other firms.
Even if the matter was conducted by a senior practitioner, do not assume that all boxes have been checked. There are many reasons why something may have been overlooked, and it is best to evaluate the file when you first receive it rather than encounter problems later.
This can include checking that:
(a) A conflict of interest search has been carried out.
(b) Any limitation date has been recorded and diarised appropriately.
(c) The contact details for parties are current.
(d) Original documents have been stored appropriately.
Taking over a file can be tricky and time consuming. It is easy to get caught up with the apparent urgency of the matter and, in doing so, miss critical issues that should have been attended to. However, with a good process in place for ‘second-hand’ files, you can minimise your risk and that of your firm, ensuring that both you and your client are comfortable and confident with the progression of the matter.