The Guide to Professional Conduct of Solicitors in Ireland (second edition) deals with the provisions that apply in relation to a solicitor’s lien.
In short, when a file is being transferred from a former solicitor to the current solicitor, the former solicitor is entitled to exercise a lien on the file in relation to the former solicitor’s costs. There are some exceptions to this. However, this article proposes to deal with a general lien on costs in a litigation matter. The procedure as per the Guide to Professional Conduct is that a courteous request for files should be made by the new solicitor to the former solicitor. The former solicitor then draws a bill of costs. The fees may then be agreed, arbitrated or taxed.
According to the Guide to Professional Conduct, the former solicitor is under no obligation to furnish his or her original file and papers to the new solicitor without first being paid. The former solicitor may opt to accept an undertaking in respect to the payment of costs, as alternative security to the solicitor’s common law lien. Even in those circumstances, the Guide provides that all outlays should be refunded immediately to the former solicitor. This is a matter that arises on numerous occasions during the lifetime of a litigation solicitor. A client may leave a former solicitor for a myriad of reasons. The client may leave because of a perceived lack of service, or simply because the client has moved to a different part of the country and finds it difficult to deal with a solicitor now operating a significant distance from where that client resides.
In any event, the Guide does not draw a distinction – which ought to be made – between a retainer of a solicitor that is discharged by the client and a retainer that is discharged by the solicitor.
Off record
The matter came up for discussion in a decision of the High Court made by Ms Justice Laffoy on 11 July 2008 in the case of John Ahern and Others v the Minister for Agriculture and Food, Ireland and the Attorney General – [2008] IEHC 286.
It is clear that the Guide to Professional Conduct deals only with a situation where the client discharges the solicitor.
However, there are many occasions upon which a solicitor may discharge a retainer. When a solicitor comes on record for a client in litigation, a solicitor is accountable to the client, and also accountable to the court and to the other side in relation to the delivery of pleadings. That is an obligation that can only be withdrawn by leave of the court. Solicitors come off record all the time. Solicitors may come off record because they cannot receive proper instructions, or because irreconcilable differences have arisen between the solicitor and the client – or, in other words, the client refuses to take the advice of the solicitor. It may also be the case that the client has refused to comply with the terms and conditions of the solicitor’s retainer as regards payment of fees.
In the case decided by Ms Justice Laffoy, the solicitors had applied to come off record. The court granted leave to the solicitor to come off record.
The new solicitor then sought the original files and papers, and offered the former solicitors to accept an unqualified undertaking from the new solicitors to pay in full the costs as to be agreed or taxed, before a certain date. If that undertaking was forthcoming, the former solicitors would then release the client’s files to the new solicitors.
The court drew a distinction between a client discharging the retainer of a solicitor and the solicitor discharging his or her retainer by the client.
Ms Justice Laffoy indicated that “where the solicitor has discharged his retainer, the court will then normally make a mandatory order, obliging the original solicitor to hand over the client’s papers to the new solicitor, against an undertaking by the new solicitor to preserve the lien of the original solicitor.”
In this particular case, there was a dispute as to who terminated the retainer. The former solicitors argued that it was the client who discharged the retainer. The client argued that it was the solicitor who discharged the retainer. Ms Justice Laffoy found that there was no evidence of an expressed discharge by the client of the former solicitor’s retainer.
She went on to say that “whether there was an implied or a constructive discharge is not something which can be determined on the basis of the affidavit evidence, no more than, if it were an issue, the court could determine whether the former solicitor terminated the retainer for reasonable cause. Affidavit evidence, which is the type which is before the court, is not an appropriate foundation for the non-exercise by the court of the equitable jurisdiction identified in Gamlen Chemical Company v Rochem Ltd, which I have no doubt the courts in this jurisdiction enjoy. Therefore, I am constrained to adopt the approach I adopted in Mulheir v Gannon and deal with the matter on the basis that it was the former solicitors who terminated the retainer, but that they did so for reasonable cause.”
Ms Justice Laffoy made an order directing the former solicitors to deliver to the current solicitors the client’s files (in spite of and solicitors lien), provided that the current solicitors gave to the former solicitors an undertaking in writing to hold the said file subject to the former solicitors’ lien and to return them to the former solicitors on the conclusion of the plaintiff’s claim in the proceedings.
The court indicated that the delivery of the files must be without prejudice to the former solicitors’ claim for costs against the client, such a delivery to be effected within two weeks of the furnishing of the undertaking.
Matter of Contract
The court made it clear that the former solicitors’ entitlement to recover costs from the client, and the client’s liability therefor, were matters of contract between the client and the former solicitors, and the court had no jurisdiction in this particular case to adjudicate on that matter.
An application had been made in the case by the client to defer payment of the former solicitors’ costs to the successful outcome of the client’s claims. Ms Justice Laffoy found that this application was “totally misconceived” and dismissed it.
She made it clear that the court had to maintain a “fair balance between the proponents”.
The order made in this case preserved the former solicitors’ lien while at the same time enabling the client to prosecute his claim.
It is clear that each case will be taken on its merits. However, it is also clear that, where the court determines that the solicitor discharged his or her retainer, the provisions of paragraph 7.6 of the Guide to Professional Conduct will not apply.
There was nothing in the order made by Ms Justice Laffoy preventing the former solicitors from immediately taxing their costs and pursuing those costs against the former client.
However, the solicitors’ lien, as we understand it, did not apply – fundamentally, because the solicitor had been deemed to discharge his retainer.
Balancing Act
In summary, the provisions of the Guide to Professional Conduct apply in circumstances where the client discharges the solicitor’s retainer. However, the Guide will not apply to a situation in which the solicitors come off record for failure to receive instructions, or in any manner discharge their retainer by the client.
It is my view that the Guide to Professional Conduct needs to be amended and restated in light of the decision made by Ms Justice Laffoy and that a clear distinction should be drawn between the two types of discharge of retainer and when a solicitors lien is appropriate. This would be to the benefit of all solicitors dealing with such situations.
In practice, these situations are quire difficult, because the former solicitor is normally aggrieved about the discharge of his or her retainer and the new solicitor is also keen to ensure that the former solicitor gets paid. It is a balancing act, which is quite often difficult to maintain.
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Source: Law Society Gazette, June 2010. Written by Patrick Mullins
