Question of ethics
Important: The guidance below was written and issued before the introduction of the SRA Handbook on 6 October 2011, and may refer to regulatory material that is no longer in effect. Although it may still be relevant, this guidance has not yet been reviewed in light of the wide-ranging regulatory changes implemented on 6 October. It will be reviewed and updated (or archived) in due course.
January 2011
Note: References to a "rule" or to the "Code" are to the rules in the Solicitors' Code of Conduct 2007. "Manager" means a partner in a partnership, a member of an LLP or a director of a company.
Suspicions a client may call from prison on a mobile phone
Q. I act for a client who is currently remanded in custody. One of the client's relatives has today called in to the office to leave some papers. I suspect, from something he said, that my client may have access to a mobile telephone that is not permitted under prison rules. The client is intending to telephone me later today to discuss his upcoming hearing. Can I take the call?
A. Bearing in mind your duty to act in your client's best interests, and given that you do not know for certain whether the client is using a mobile phone, you can take the call. However, you must raise this issue with your client, explaining the position under the prison rules and making it clear that you will not accept any call in future that you suspect is made on a mobile phone. To do otherwise could put you at risk of being found in breach of rule 1.06 (public confidence) of the Code. Similarly, you should make it clear that you will only contact your client through the normal means.
Writing to former clients in order to invite instructions at new firm
Q. I am an assistant in private practice and will be leaving my firm next month in order to join a new firm. What should I do in relation to my current clients? Can I write to them after leaving the firm, inviting their instructions?
A. Your departure will affect not only those clients for whom you are acting but also any clients whose matters you are responsible for supervising. The firm has a responsibility to ensure that those clients are told the name and status of the person who will be taking over from you (see rule 2.02(2)(d)). It is preferable for the information to be given to those clients in advance of your leaving (see rule 2, guidance note 20), but this is a decision for your firm, and you should therefore discuss with the managers of the firm how this will be achieved.
If the client asks for your new practising address, the firm should not withhold the information if they know it.
It is not misconduct in itself for you to write to the clients after you leave the firm in order to invite their future instructions, but bear in mind that
- this will not absolve you of any legal obligations arising out of your employment with the firm (see rule 7, guidance note 47), and you will therefore need to consider your legal position;
- you need to consider any legislative requirements (see rule 7, guidance note 33 for examples);
- it would not be proper to write to the client, inviting him or her to transfer instructions in their current matter to you, in view of the restriction in rule 10.04 (contacting a party who to your knowledge has already retained a solicitor to act in a matter).
Old firm slow to forward clients' files after receipt of signed authority
Q. I have recently left my old firm in order to join a new firm. Some of my clients have chosen to follow me to my new firm. Although I have sent a signed authority to my old firm requesting the clients' files, the firm is dragging its heels. So far, I have not received any of them. I suspect this is simply because I left the firm rather than for any other reason. Is the firm acting improperly?
A. It depends. Generally speaking, if a client wishes to terminate the retainer with the firm in order to follow the solicitor to a new firm, the existing firm should hand over the clients' files promptly if asked to do so. To delay without good reason—for example, because of a dispute between the firm and a fee earner who has left the firm—not only reflects badly on the profession, but could leave the firm open to a complaint to the Legal Ombudsman ("LeO") that it has provided an inadequate professional service ("IPS").
However, the firm will often be entitled to bill for work done. The bill should be delivered to the client within a reasonable time of the retainer ending (failure to do so could potentially lead to a finding of IPS), but the firm will be entitled to exercise a lien on the file until such time as the bill has been paid.
Guidance note 11 to rule 2 provides that the firm should try to ensure that the client's position is not prejudiced; accordingly, if a suitable undertaking can be agreed, the firm should accept the undertaking in lieu of exercising a lien. The firm should also bear in mind that, depending on the clients' individual circumstances, LeO could take the view that the exercise of the lien was unreasonable (see guidance note 11).