Solicitors & Third Parties

Third-Party Dealings

A solicitor must be honest and courteous in all dealings with third parties.  He must not engage in conduct which is fraudulent deceitful or otherwise contrary to his position as an officer of the court.  He must not use his position to take unfair advantage. The solicitor must not encourage or offer inducements to a third party with a view to obtaining instructions.

Where a solicitor deals with a third party who represents himself, he is not bound actively to assist the other party.  Where he forms the view that the third party is not competent to act, he should recommend in writing that the other party consult a solicitor. Where a solicitor is instructed by a seller and is not aware of the details of the purchaser, it is appropriate for the solicitor to write to the purchaser asking for the name and address of his solicitor.

A solicitor while not under a duty to assist a third party should behave in a courteous manner to that individual.When dealing with a lay conveyancer, he should explain the difficulties that might be encountered, including in particular difficulty in giving and  accepting an undertaking and that additional expense may be incurred.  If a solicitor is acting for a purchaser,  the deposit  should not be handed to a lay vendor; an alternative stakeholder should be sought.

Commencing Proceedings

Where a solicitor is instructed to collect a debt, it is improper to demand the costs of the letter sent to the debtors,  as this is not a legitimate cost at this stage.  It is improper to imply to the debtor that he will have to pay the cost of the litigation as this is a matter for the court.  He may however state that in the event of proceedings being proving the letter would be produced as evidence in an applicant for costs against the debtor.

An initiating letter should not be unnecessarily aggressive. Where proceedings are commenced, a preliminary letter should be written to the intended defendant, even if the cost may not be recoverable.  There are circumstances where proceedings may be issued without prior warning.  The solicitor as a matter of courtesy, should explain in the letter with the proceedings why this was necessary.

Dealing with Other Solicitors

The solicitor must be honest in dealing with other solicitors and act with frankness and good faith consistent with his overriding duty to his client.  He should promote a culture that recognizes the bona fides of colleagues even where the situation is  necessarily adversarial.  He should maintain professional integrity and observe the requirements of goods manners and courtesy towards other members of the profession and their staff.

From the perspective of the recipient solicitor a verbal undertaking will not generally be appropriate.  A written undertaking is almost invariably necessary in order to compel compliance.

A solicitor should not write an offensive letter to other members of the profession.  He should not threaten to sue an opposing solicitor for costs which may be awarded against his client. If amendments are made by a solicitor for one party to a transaction to draft documents, the first solicitor should be alerted to the amendments in the covering letter.

Contacting Another’s Client

A solicitor should neither intervene nor otherwise communicate with the party on the other side of the matter, who to the solicitor’s knowledge, has retained another solicitor to act in the matter,  without the third-party solicitor’s consent.

In exceptional circumstances, this principle may not apply, where for example, the other party’s solicitor has failed to reply in writing to  correspondence.  In this case, the solicitors may be justified in writing directly to the other solicitor’s client.  The other solicitor should be warned of the intention to do so.

A solicitor may give preliminary advice to a client who seeks a second opinion on a matter in which the client has already instructed another solicitor, whether or not they intend to change solicitor.  If the client instructs the second solicitor, the first solicitor should be notified without delay.

Where the other solicitor is a solicitor employed in-house in an organization, the employer is usually that other solicitors’ client.  Ongoing correspondence should be directed to the solicitor.  Other personnel of the organization should not be contacted directly.

Privilege

Communications between solicitors for opposing parties or between one solicitor and the opposing party and not privileged unless there is an express or implied agreement that they be privileged.  This most commonly occurs where they are expressly written without prejudice.

“Without prejudice” marked correspondence means that the correspondence is without prejudice to the writer’s position if the terms are not accepted by the party to whom the correspondence is addressed.  It precludes production of the correspondence as evidence of the matter disputed..

The principle applies only where the words are used in the course of bona fide negotiation for settlement of the dispute.  If an agreement is reached, then at the conclusion of negotiations, the privilege ceases to attach and the terms of the correspondence may be produced to prove the terms of the settlement.

A solicitor should not furnish information on the client’s file to another solicitor without  appropriate instruction from the client to supply the information, and where the file is to be transferred, on satisfactory provision being made for payment of the solicitor’s proper cost for so doing.  This is subject to any privilege of the client and to the obligation to protect the client’s interests.

Payment

A solicitor who instructs an agent should ensure the agent paid at the earliest opportunity.

A solicitor may be entitled to exercise a lien on files monies and deeds.  See the separate chapter in this regard.  A lien may be exercised in all of the files of the particular client if there are costs outstanding on any one of the files.

Transfer of Files

A courteous request for files and prompt response are important for the handover of files between solicitors.  A solicitor need not fund a case after the client has left the solicitor.  If the costs are due a bill of cost should be furnished without delay.  Cost may be agreed, arbitrated or taxed.

No fee  arrangements are likely to impliedly end if the client moves to another solicitor.  It is likely to be implied that the contingency arrangements are conditional on the first solicitor continuing to have the prosecution of the case.  Accordingly the first solicitor will be entitled to fees for work done.

Where a file is transferred, the first solicitor may accept an undertaking in respect of costs as alternative security to his common-law lien.  The second solicitor should qualify the undertaking to say that it is conditional on the second solicitor not being discharged and on sufficient monies coming into the solicitor’s controls to pay that cost.  Even where an undertaking is accepted by the first solicitor, the outlay should be refunded immediately.

An employee leaving a firm cannot without authority, take the files of clients even if they are introduced by the employee. If a partner leaves the firm or the partnership is dissolved, the transfer of clients is a matter of agreement between the partners,  subject to the wishes of the clients.

Transfer Issues

On transfer of a file, the first solicitor should be released from undertakings furnished to third parties.  This will require the consent of the recipient.  Where the client wishes to transfer his business from one solicitor to another and the first solicitor has given undertakings to third parties, the client may not determine the retainer without the first solicitor’s consent.

The solicitor may consent that the termination is subject to the release of the undertaking.  A solicitor need not cooperate with a client who seeks to leave the solicitor with an outstanding undertaking.  The solicitor may copy the file if necessary for the purpose of complying with his undertaking.

The file transferred should include instructions, briefs, copies of correspondence to third parties documents prepared for third parties, by third parties for the benefit of the client. Documents dealing with the substance of the matter  should be included.

Papers belonging to the previous solicitor may be retained by him.  This includes papers and documents prepared for him for his assumed benefit for which he has not charged and does not intend to charge the client.

Where a solicitor proposes to come on record, the appropriate notice of change of solicitor must be filed with the court and the opposite parties or their solicitor must be served.

At the conclusion of litigation, if the second solicitor recovers costs including that for the work done by the first solicitor, he is accountable to the first solicitors for the appropriate proportion.  This is the case even if the solicitor-client costs  property payable to him exceed the total amount of the party and party cost recovered.

A solicitor who is engaged by a client is entitled to be paid his costs for work properly done.  Where a client  changes solicitor and engages a second, the second should ensure at the outset that the client fully appreciates and understands the obligation to pay for costs due for work properly done by the first solicitor.

Misconduct by Others

If a solicitor is of the opinion that another solicitor has engaged in serious misconduct, this must be brought to the attention of the Law Society.  This may require the client’s consent which should be obtained, if it would involve the disclosure of the client’s affairs.  There is no obligation to bring matters to the Law Society if it comes to the solicitor’s notice in the course of assisting a colleague as a panel member or under a recognised Law Society assistance scheme.

Referrals

Where a client is referred to a solicitor under a consultancy referable system established by the Law Society or because the first solicitor has a conflict of interest the basis of the arrangement should be that the second solicitor should not take advantage of the trust placed by his colleagues by agreeing to take instructions from the client in a new matter save with the consent of the referring solicitors.  This applies for a period of 12 months from the referral, if such new instructions are of the type which the referring practitioner could carry out himself, being within his reasonable competency.