Out of office or out of control? Why absence makes the risk grow stronger for solicitors

In this month’s article from Lockton, Matthew Thomson looks at the importance of a firm’s risk management procedures in the context of colleague absences.

A true test of a law firm’s risk management system is how seamlessly it operates when a fee earner or staff member is absent. This is often when weaknesses in file management become apparent. Unfortunately, it’s also when claims can arise due to files being neglected or simply not handled as effectively as they should be.

Absences can stem from a variety of reasons – sometimes it’s planned, such as annual leave, and other times it’s unexpected, like a sudden resignation or illness. Regardless of the reason for the absence, it’s crucial that client files continue to be managed and attended to without delay or oversight. Law firms should ensure that they have appropriate arrangements in place to provide cover for absent colleagues.

Experience and expertise

First of all, it’s critical that any incoming fee earner (ie the fee earner who picks up the file) has the experience and expertise required to carry out the work in the absence of the outgoing fee earner.

There may be situations where an incoming solicitor is asked to cover work that’s outside of their usual remit. Provided they are adequately supervised, this can sometimes be managed effectively. However, generally, firms will want to ensure that individuals with the right competencies are available for each specific piece of work.

Planned absence – the handover process

Where an absence is planned, the outgoing fee earner should pass their knowledge about the status of the work to the incoming fee earner.

To help with this process, the outgoing fee earner should organise a handover meeting and also prepare a handover note. Generally, it’s sensible for both the meeting and the note to be integrated into the firm’s mandatory procedures, whether through case management systems or other processes.

The length of the transfer procedure will depend on the number and complexity of files. Where the factual background or legal position is complex or where there are lots of files, it can take some time to set out matters fully and ensure that key points are included. Building this time into work schedules helps to ensure a smooth transition and maintain workflow without disruption.

The handover note

The purpose of the handover note is to provide the incoming colleague with a summary of information regarding the up-to-date position and next steps for transactions or cases so that the transition is as short and smooth as possible and to ensure continuity of client service.

It’s obviously much easier to prepare a handover note if the files themselves have been well-maintained and are easy to read. File management is therefore important throughout a transaction or case (see a previous Journal article on file management).

Where a fee earner is only temporarily covering work, it can be useful for that fee earner to also write a handover note towards the end of the cover period, to ensure a smooth transition back to the original fee earner.

Unplanned absence

Where an absence is unplanned, coordination and communication between incoming and outgoing fee earners might not be possible. In these cases, a solicitor might have to take over a piece of work without a handover process.

If you find yourself in the position of the incoming solicitor in such a scenario, your initial inclination might be to throw the file out of the window or move it into the recycle bin! Please don’t do this. Instead, try to set aside dedicated time to read and re-read the file in detail.

When reading the file, it’s dangerous to assume that all matters have been dealt with properly. Regardless of the diligence of the outgoing fee earner, there’s always the chance that matters have not been attended to as well as they might have been prior to the transfer. This is why the file needs to be reviewed thoroughly to ensure that nothing has been missed, misunderstood or misreported. Solicitors should check through the documentation carefully and confirm any outstanding items or dates as they go.

As a general file management observation, do consider having standardised naming conventions across all files for emails, correspondence and documents saved on your case management system. This will make it easier for an incoming fee earner to look through a file and understand what each document is, rather than having to decipher the outgoing fee-earner’s own personal method of naming documents.

It’s always sensible to pay particular attention to the initial client instructions and the agreed scope of work and to make sure these documents are in the file. This will make it easier for you to refer back to these documents as you complete your review, ensuring that everything is progressing as planned and that the work has stayed within the agreed scope of instructions.

For more tips on reviewing the file, see Lockton’s guide, Managing Risk – Conducting Effective File Reviews, which includes a template checklist for practitioners.

Compliance roles

Firms should consider how to handle compliance roles during unplanned absences, especially when the absent fee earner holds a specific position required under the Law Society of Scotland’s practice rules, such as MLRO (money laundering reporting officer) or cashroom manager. In these situations, it’s important that another manager steps in to fill the compliance role for the duration of the absence. This arrangement should be communicated promptly to the Society so they’re aware of who is currently responsible.

If there isn’t anyone acting as MLRO or cashroom manager for an extended period of time, the risks of accounting matters or anti-money laundering (AML) issues being missed are increased. To avoid this, it’s important that these roles are always covered, even temporarily.

Diary systems

It’s always important to review the file as soon as possible, particularly where there is a risk of missing a time limit or of a contentious matter becoming time barred. As well as reviewing the files, it’s important to review the relevant diary and calendar systems for any imminent deadlines (when it comes to critical dates, it’s essential that firms use a shared system that can be made accessible to other colleagues in the event of a fee earner absence).

Client communications

It’s crucial that clients are aware of who is dealing with their work and law firms should have policies in place to notify clients promptly whenever changes occur (Law Society of Scotland Rule B.4 requires solicitors to provide this type of information to clients).

If the absence of a fee earner will result in a change to either the main point of contact or the person with primary responsibility for the work, it’s important to communicate this change clearly to the client. In situations where work is being delegated, it’s equally important to explain this to the client so they understand how their matter is being handled. Additionally, if a substitute fee earner will be involved, it’s important to provide the client with their name and contact details.

Openness and transparency

All practitioners should aim for collaboration and openness when either handing over or receiving a piece of work. No matter the circumstances, it’s important that solicitors and staff feel supported and encouraged to identify any issues or concerns that they are aware of, without fear of reprisals for honest mistakes. Ultimately, encouraging transparency across the firm helps to ensure smooth transitions and protects everyone’s interests.

The same principle applies when someone is leaving the firm. They should be reassured that it’s both expected and appreciated for them to disclose any files or matters they believe could potentially pose problems down the line. By fostering an environment where people feel safe to be candid about any challenges or uncertainties, firms can address potential issues early on and maintain the highest standards in their work.

Be prepared

Having robust, standard procedures for dealing with transferring workloads ensures continuity and minimises the risk of something slipping through the cracks. In considering arrangements for cover, solicitors will want to think about the expertise of colleagues taking over the work and how they are being briefed.

By conducting the transfer in a controlled manner, with appropriate handover meetings and notes in place to support the transition, law firms can ensure that they maintain continuity of service and preserve the quality and integrity of their work.

Matthew Thomson is a client executive in the Master Policy team at Lockton.

This is an article provided by Lockton, the official insurance broker responsible for placing and administer the Master Policy of the Law Society of Scotland. Lockton is the direct point of contact for anything related to the Master Policy, including claims, practice changes and general enquiries.