Mandates
In 1998 the Professional Practice Committee reviewed the guidance to the profession on the subject of Mandates. This was contained in several sources and the purposes of this article is to update the guidance.
Clients now shop around more than they did with the consequence that at times it may be difficult to draw lines between a response to advertising, competitive quoting and touting. It remains the case, however that a Solicitor should not directly approach someone else's client. We therefore have to look at both sides of the Mandate situation, the obtaining of a Mandate and the response to a Mandate.
Obtaining Mandates:
Since a Solicitor cannot approach another Solicitor's client other than as part of a general circulation, mailshot or advert, the initial approach must come from the client. The exception to this, the situation of Partnerships breaking up, is considered below. There may be a variety of reasons why a client may wish to change Solicitors.
Client Moving:
The simplest situation which will seldom cause any difficulties is the obvious one of the client moving from one part of the country to another and wanting to instruct a local Solicitor, e.g. in an ongoing matrimonial case.
Client Dissatisfied:
The client may or may not be moving but wants a new Solicitor. This should be straightforward enough but points to note include:
Ensuring that the instruction to the new Solicitor is from the client as opposed to a relative or friend who has suggested the change of Solicitor; and
The client should be asked if the dissatisfaction should be communicated to the previous Solicitor and, if so, whether in general or detailed terms.
New Cases:
For a variety of reasons, (moving, dissatisfaction, lower quote, personal connection or recommendation) a client may give instructions to a new Solicitor at the beginning of a new piece of business although that client was represented by a different Solicitor in previous matters. Most commonly this would be the situation where a property has been bought using one Solicitor and a few years later is to be sold through another who then has to obtain the titles. Obviously if the titles are with a Bank or Building Society the new Solicitor just requests them and gets on with it and no Mandate is needed. If the titles are with the previous Solicitor a Mandate will be required.
The situations outlined at (a), (b) and (c) above are relatively straightforward. For whatever reason the client has instructed a new Solicitor. Things are much less straightforward, however, in the situation where the Solicitor's Partnership is breaking up. There are two slightly different situations here. One is the Partner leaving the continuing firm and the other is the firm itself dissolving.
Partner Leaving:
The Partners of the firm involved should agree on the procedure to be adopted in advising clients of the change in the firm. In some cases it may be agreed amongst the partners that the departing Solicitor should carry on with certain cases. In others it may be desired to leave it to their clients to decide whether to stay or go with the departing Partner. It makes sense to agree the approach in advance. An unseemly squabble may well alienate the client from all of the Partners. The terms of a joint communication should be agreed and sent to the client who should be invited to indicate a preference to stay with the established firm or go with the departing Partner. In an age of ever increasing competitiveness, however, it may be that the established firm and the departing Partner wish to set out their respective stalls in their own distinct ways. It is to be hoped that they can at least agree to send their letters in the same envelope.
Particular difficulties arise where there is no co-operation between the departing and remaining Partners. Some Solicitors take the view that all clients are clients of the firm rather than individual Solicitors and maintain that a departing Partner has no right to try to take clients away from the continuing firm. If that were the case then the departing Partner would not be allowed to seek Mandates from the clients. The Committee has reaffirmed its view however that subject to what the Partners may themselves have agreed a departing Partner is entitled to contact clients for whom he or she has acted personally as the responsible Partner and invite them to continue to be clients at the new firm.
The right to contact clients applies both while the departing Partner is still a Partner of the firm whose clients are being contacted; and also for a reasonable time after the Partner has left. What is a reasonable time will depend on the circumstances but in a case in the early 1990's the Committee decided that 3 months was still within a reasonable time.
Associates and Assistants Leaving:
All of the above applies only to Partners, (i.e. Partners in the previous firm). Unless there is a specific agreement which allows it, a departing Assistant/Associate is not entitled to contact clients of his or her employers to seek Mandates with the sole exception of those who are Nominated Solicitors on a Legal Aid Certificate. The Professional Practice Committee accepts that an Assistant may very well attract business to a firm. However it is the firm, and the Partners thereof, who have the authority to deal with the clients. An Associate/Assistant does not act for the client. It is anticipated, however, that where there is a significant element of delectus personae the clients may wish to follow the Assistant elsewhere. The approach has to be from the client however.
Nominated Solicitors:
In terms of the Legal Aid Act, legal aid is available through individual Solicitors not firms. The Court of Session has held that so long as a nominated Solicitor remains in that position he is under a clear professional duty to render all normal services provided by a Solicitor. It follows that an employed Solicitor who is a nominated Solicitor is obliged to advise the client of a move and if the client wishes, is entitled to continue as nominated Solicitor.
Dissolution of Partnerships:
Occasionally a firm may be dissolved completely with various Partners going in various directions. If the firm ceases to exist then it can only be the personal relationship between an individual Solicitor and the client which is important. In most cases arrangements would be made for each Partner to take certain files etc. and the client would be advised of this and given an opportunity to instruct otherwise.
In the odd situation where there is no agreement between the Partners the proper course is for the client to be advised of the position, told the new business addresses of all the relevant Partners and asked to choose which, if any, to instruct to hold files etc. All of the Partners of the dissolving firm have a duty to ensure proper arrangements are made for the retention of all necessary files and documents.
Receiving Mandates:
The simple rule (except that there is no specific practice rule on the matter) is, and always has been, that when you receive a Mandate you must respond to it timeously either by sending the items requested to the new Solicitor or stating that you are exercising a lien pending settlement of fees and outlays. A delay in doing so will normally be misconduct. You cannot retain papers, even if you have a right of lien, if to do so would prejudice the client (e.g. in a continuing Court case or transaction) but you can deliver the papers reserving your right of lien and requesting the papers to be returned when the case is concluded. Prejudice is more than inconvenience and will depend on the particular circumstances of the matter.
Any Solicitor receiving a Mandate will usually want to know why. Sometimes the reason is obvious but various questions and problems can arise.
Did the new Solicitor tout for the business?
It is not for the established Solicitor to judge. You may suspect and if you have evidence you may report but you must, in any event, take the Mandate at face value and hand over the papers.
There is an outstanding fee note. See also Guideline on charging for delivery/lending files/deeds
You can exercise your lien but you must still respond to the Mandate by writing to the new Solicitor immediately to say you are doing so.
Work has been done for which a fee will be payable but no fee note has been sent out.
One sometimes gets the response when sending a Mandate that the file has been sent to the Law Accountants and will be forwarded in due course once the fee has been advised and paid. Whether this is acceptable depends on the case in question. If a few weeks without the file will make no great difference then it may be acceptable for the established Solicitor to do this but if the new Solicitor needs the file quickly it is not. The file etc. can be delivered reserving the right of lien. A reasonable time to render an account is in order but it should not exceed four weeks unless the circumstances are truly exceptional. It may be that having extracted such information as required the new Solicitor does not need the actual file in which case it should be returned. This imposes a duty on the new Solicitor to say whether the file is needed urgently and to return the file for feeing as soon as reasonably practicable. If the new Solicitor gives an undertaking (not the clients undertaking) that the account will be paid out of the proceeds of the matter in hand, that should normally be accepted by the original Solicitor and the file and papers delivered.
To whom should a fee note be sent when a Mandate is received?
Views differ but the Professional Practice Committee decided in March 1997 that it is not a breach of Article 9 of the Code of Conduct for a Solicitor to send a fee direct to the former client. This followed the view that the debt was due by and would require to be enforced directly against the client. If a lien is being exercised the new Solicitor should be informed anyway. If a lien is not being exercised it might be wondered whether there is a duty on the established Solicitor to tell the new Solicitor that a fee note has been/is being sent. One doubts if it could be categorised as misconduct not to tell the new Solicitor this was being done but it might be seen as a matter of professional courtesy. It should be emphasised, however, that if anything at all is to be sent directly to a client who has instructed a new Solicitor then there should be nothing in that communication which invites the former client to resume the original connection. If fee notes can be sent direct to the client after a Mandate it seems to follow that reminders can also be sent direct but these should be just that, reminders and nothing more. Any invitation to discuss or the like would be a breach of Article 9 of the Code of Conduct and any such matters should be raised through the new Solicitor.
Can the established Solicitor ask why the Mandate has been sent?
Yes, but only after the mandate has been implemented. Implementation means delivery of the papers and not simply telling the new Solicitor that a lien is being exercised. The idea behind this is that no undue pressure should be brought to bear on the client and the danger of that happening clearly still exists while the established Solicitor still holds the papers.
To whom should the request for reasons be made?
In his article Scott Galt considered that a request for reasons for a Mandate should be addressed to the new Solicitor. The May 1995 Journal article states, however, that a Solicitor having implemented a Mandate may write to the former client making a reasonable enquiry as to why the client has instructed a new Solicitor. The Solicitor can ask for information but must not in any way invite the former client to resume the original connection. Many Solicitors may disagree with the view that the Solicitor can write directly to the former client at all. On the other hand it may be one of the few ways in which touting might come to light. The current position is, therefore, that the established Solicitor can write directly to the client once the Mandate has been implemented but must be extremely careful in the wording of any such communication.
Criminal legal aid cases.
Specific rules apply and are set out at Article 7 of the Code of Conduct for Criminal Work. (See Schedule attached.)
Civil legal aid cases.
Again specific rules apply relating to SLAB's approval of the transfer of Legal Aid Certificates.
In both criminal and civil cases the guidance on request for reasons would apply. With regard to the payment of fees, it can be a source of great frustration in Advice and Assistance cases that SLAB will not consider an account until the whole matter is completed. The original Solicitor may have no way of knowing the matter has been completed unless this information is received from the new Solicitor and is therefore entitled to exercise a lien until a satisfactory undertaking from the original Solicitor is received. There is a clear duty on the new Solicitor to tell the original Solicitor when the account can be submitted or to pay the account out of the proceeds recovered or preserved.
Assistants leaving.
As noted above, the general rule here is that the client is a client the firm and not the individual and so the Assistant should not approach the client. A Mandate received in these circumstances however still has to be treated at face value and still has to be implemented, although the Solicitor's conduct could be brought to the attention of the Law Society.
Partial Mandated and General Mandates.
A difficulty which may occasionally arise is the situation where the client wants a particular firm to do a particular transaction without in any way intending to shift allegiance in general. Sometimes this has not been reflected in the Mandate which followed which might request all title deeds and documents leading to misunderstandings and quite possibly a falling out between Solicitors, none of which tends to impress the client very greatly. It is not uncommon these days for clients to use different Solicitors for different types of business or even for the same type and a new Solicitor should not simply assume that he or she is going to be acting for a new client in all matters. This difficulty could be addressed by producing a pro forma Mandate along the following lines:
I hereby authorise and instruct you to send:
*All title deeds and documents and files
*The title deeds of (specify property)
*The documents and papers relating to (specify matter concerned) held by you to (new Solicitors)
*Delete where applicable.
Separate record of the date on which a Mandate is implemented
Following the delivery of a file and any other documents in implement of a Mandate the original Solicitor should retain the Mandate and a separate record of the date on which the Mandate was implemented to include a general description of what was delivered in implement of the Mandate. (introduced July 2008)
SCHEDULE
MANDATES IN CRIMINAL WORK (ARTICLE 7 OF THE CODE OF CONDUCT FOR CRIMINAL WORK) All Mandates requesting the transfer of papers and legal aid relating to a criminal matter shall be completed and executed by the assisted person in the form agreed by the Scottish Legal Aid Board and the Law Society of Scotland. The Mandate should include the place and date of signing and a full explanation as to why the Mandate has been issued.
Guidance Note
The matter is governed by the Criminal Legal Aid (Scotland) Regulations 1987, paragraph 17(3), which states where an assisted person desires that a solicitor, other than the solicitor presently nominated by him shall act for him, he shall apply to the Board for authority to nominate another specified solicitor to act for him and shall inform the Board of the reason for his application; and the Board, if it is satisfied that there is good reason for the application and, in the case of Legal Aid made available under Sections 24 or 25 of the Act that it is in the interests of justice or, as the case may be, is reasonable, for him to receive or continue to receive Criminal Legal Aid, may grant the application.
It seems clear from a plain construction of this Regulation that changes of agency where the client is legally aided in a criminal case can only take place if the Board gives the client authority to nominate another specified solicitor. Until the Board gives its authority the client cannot instruct another solicitor unless he wishes to do so without the benefit of Legal Aid, which fact should be notified to the Board.
Therefore the chronology of transfers of agency in criminal cases should be (1) the client approaches his proposed new solicitor to ascertain if he is willing to act; (2) client applies to Board for authority to transfer the agency; (3) Board grants authority; (4) client instructs new solicitor; (5) new solicitor serves Mandate on previous solicitor.
The Board's authority to transfer must antedate any Mandate.
This Statement would solve many issues including inducements to transfer agency and Mandate wars. Adoption of this interpretation would of course mean that legally aided clients and fee paying clients will not be treated precisely equally. However, that objection has to be seen in the light of the need to comply with the Regulations which effectively impose a statutory suspensive condition on any Mandate and the requirement that solicitors will require to inform a transferring client that instructions cannot be accepted until the Regulations are complied with.
Form of Mandate approved by the Council
Dear Sir,
I write to inform you that the Scottish Legal Aid Board has transferred Legal Aid Certificate No. from you to my new nominated solicitor who is I authorise and instruct you to transfer to all papers, documents and files which you hold on my behalf in relation to this matter.
Yours faithfully,
