Advice from the Society's Professional Practice team on the rights of assistants and associates starting their own practice, in relation to former clients

Am I within the rules?

I recently began practice in my own right. I was previously employed by a firm of solicitors, where I worked as an associate.

Since I left my former firm, a number of clients that I dealt with while employed by them have instructed me to act on their behalf.

I am aware of the Society’s rules and I have never contacted any of these clients prior to them signing a mandate instructing me.

My understanding of the rules is that if a client of a firm where I have previously worked wishes to instruct me that is fine, as long as I have not contacted them and tried to encourage them to move legal representative. I would be obliged if you could confirm that this is correct.

I have now received a letter from my former firm basically making the accusation that I have been touting their clients. I don’t agree as I dealt with hundreds of clients while working for them and only 12 have mandated to my new firm.

My former firm is also requesting that I sign an undertaking that my alleged behaviour will not be repeated, failing which it has threatened to get an interdict.

I am really writing to you to seek confirmation that I am not breaking any rules if a client of my former firm comes to me and asks me to represent them.

Fiona J Robb replies

This is a fairly frequent question to the team and we are happy to advise on it. It is helpful to know that you were an associate, as the status you had within your former firm does impact on what is permitted. This is discussed later.

Contract

First, while we cannot advise you on the law, it is recommended that you check whether there is a restrictive covenant in your former contract of employment. If there is, the convenant will likely impact on what you can do and you may wish to seek advice from a solicitor with employment law experience. Subject to any contract arrangements, clients may, of course, instruct you if they wish.

Mandates

Secondly, however a mandate was obtained, it should be implemented unless the client lacks capacity, or the firm is exercising a lien for unpaid fees and/or outlays. The onus is on the former firm to advise if they are exercising a lien, and to render a fee note within a reasonable time (maximum four weeks) if one has not already been rendered. It can be sent direct to the client.

Associates and assistants moving to another practice unit

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 practice unit. However, it is the practice unit, and the partners thereof, who have the authority to deal with the clients.

It is anticipated, however, that where there is a significant element of delectus personae, the clients may wish to follow the assistant/associate elsewhere. The approach has to be from the client, however.

This guidance can be found at www.lawscot.org.uk/rules-and-guidance/section-b/rule-b3-advertising-and-promotion/guidance/b3-mandates

Ultimately, in answer to your question, if the approaches came from the clients you were free to respond positively to them.

The Author
Fiona J Robb is a solicitor in the Professional Practice Team, where she has worked for eight years. She worked in personal injury litigation for more than 10 years before joining the Society. Fiona can be contacted on 0131 226 8896 or on fjrobb@lawscot.org.uk
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