Unhappy with your litigation solicitor? Factors to consider when choosing your new dispute resolution lawyer and transferring your case.
At Loney Stewart Holland our specialism in bringing and defending solicitor professional negligence cases has given us substantial first-hand experience of the practical issues arising from a breakdown in the solicitor client relationship.
Why are you unhappy with your representation?
Common concerns
You may be frustrated at:
a lack of accessibility by phone or email
slow response times
absence of updates
legal jargon
costs surprises
key facts being forgotten/having to repeat yourself
changes in personnel
your case being delegated to inexperienced or unqualified staff
the absence of any clear case strategy
unclear/overly conservative advice on merits and value
You may simply feel unvalued.
Whilst the stress and frustration of litigation may in reality be a major factor, rather than the service your solicitor is giving, has this been explained to you? Either way, there is real merit in a frank discussion with your current firm at a senior level to put the case back on track. Any good law firm should want concerns to be openly aired and it may be that matters can be solved by, for example, revised reporting standards/lines, a redrawn case strategy or an independent review by a barrister. A reluctance to engage is indicative of fundamental issues in the relationship.
Fundamental problems
Matters may be different if the relationship has fundamentally broken down, given that trust is the bedrock of any effective solicitor client relationship. The problem may be particularly acute if the solicitor has been negligent, not least as this can give rise to conflicts of interest. However, in certain cases there can be merit in the existing solicitor being given an opportunity to fix things, rather than moving the case elsewhere – indeed the solicitor may be prepared to take such steps without charge and will not then be able later to complain in a negligence claim that the steps taken were inadequate. That said, you may still be assisted by focused independent advice in the background and in respect of any later claim if matters cannot be fixed.
What are your alternatives?
There are well over 100,000 solicitors in England & Wales, so there will be very many options. You need to be confident you make the right choice and that by transferring you are in a better position. A firm should be happy to discuss what can be offered, without charge or obligation, and you should feel comfortable shopping around. Hardened litigation solicitors should welcome a frank dialogue. Things to consider are:
Type of firm
Would you feel better suited to a more personal specialist “boutique” practice or a large national or international “full service” firm with vast resources? If the firm is not local to you, will they travel? Advances in technology do mean an effective relationship can be built “remotely”, often with the benefit of lower costs.
Expertise
What relevant specialist expertise, experience and resources can the firm demonstrate? Can specific examples or testimonials be provided? What resources can the firm devote to the case and at what stage? Do they propose keeping any current barrister and expert, or instructing new ones – if so, who will be appointed and what track record and relationship can be demonstrated?
The individual solicitor
What individual will actually deal with your dispute? What is their experience and expertise? Many firms operate through a named partner, but work in teams delegating most the work to junior team members. Others will primarily conduct the work through a specific solicitor. Will the firm provide you with direct dial and mobile telephone numbers and correspond by email? Who should you contact when your solicitor is away?
Proposed strategy
What is the firm’s proposed strategy and timeline for the transfer and resolving the matter and what results do they expect?
Future costs
What will the firm’s costs be, including expenses such as Court, expert, barristers and mediator fees? Will they charge for reading in on transfer? Will there be costs that are not recoverable from your opponent even if you win the case? If the Court has or will set a capped recoverable costs budget for the steps to trial, can the firm keep their costs within that budget?
Practical considerations
The process
Transferring a case is usually a straightforward step that your new solicitor can implement for you. You will usually not need to have any contact with your old solicitors again and they should not need to contact you.
A client is entitled to end the contract with the solicitor at any time, without notice and for any reason, whereas a solicitor can only terminate for good reason and on reasonable notice. However, thought needs to be given to when is the best time to transfer and the consequences of transferring.
Your File
Your existing solicitor should have kept a full file of relevant documents recording all key information, which will allow your new solicitor to get to grips with the matter quickly. You are generally entitled to receive most of the file. Your new solicitor can obtain the file directly simply by you signing a form of authority. If your existing solicitor has ceased trading the file can usually be located via the regulator.
Unpaid fees
If there are outstanding costs your solicitor may have the right to hold onto the file until they are paid, known as a “lien”. However, there are exceptions to this, there may be valid objections to the costs being sought and the file might anyhow be obtained by your new solicitor giving certain “undertakings” which can defer any fee issues until the end of the case. It may be that you hold all key documents separately anyhow.
If your case is funded under a “no win no fee” Conditional Fee Agreement, terminating your contract may trigger an entitlement by the solicitor to seek some costs. Again, this might be avoided by negotiations via your new solicitor or your new solicitor providing undertakings.
Insurance
If your case is funded by Legal Expenses Insurance, the policy will often state that the insurer can terminate funding if you sack your solicitor. However, this is generally a highly qualified right. Your insurer may also seek to insist upon the case being transferred to another “panel firm”, which is often said to be on the basis of the insurer ensuring you receive strict service levels (but often in reality so that it can control costs). The Insurance Companies (Legal Expenses Insurance) Regulations 1990 gives the right to choose your own solicitor in very many cases, particularly after Court proceedings have been commenced. The Financial Ombudsman Service is also generally sympathetic to policyholders in these situations. Care will also be required on transfer if you have After the Event Insurance.
Contact us
The partners at Loney Stewart Holland are available for a confidential no obligation discussion regarding the pros, cons, practicalities and costs associated with transferring any case within our areas of expertise – commercial, professional and insurance disputes. We will only offer to take on the case if it is right for you. We also have a network of like-minded professionals which we are always content to refer on to if that best suits your needs. You can find our contact details here.