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Lexcel v6 manual May 2015 © Enderley Consulting Limited 2015

7 File and case management

7.1 case plans

Every matter must have a clear strategy that is apparent from the file.

In most cases fee earners will set out the plan in the initial letter to the client, providing further updates as the matter progresses.

In more complex cases, and for all high-risk matters, fee earners may need to prepare a more detailed ‘case plan’. This might be because the matter is for example unusual, high cost, or involves several different fee earners, requiring project management skills. See the example at Appendix 5G.

It is a matter of professional judgment for the fee earner in charge of the matter, in consultation with their Supervisor, to determine whether they can incorporate the plan into the initial letter or whether they need to produce a detailed case plan. Whichever is selected, it is essential that the information is provided in a clear and accessible form that is appropriate to the needs and circumstances of the client. The client must be able to make an informed decision about the services they need from the options available to them.

Fee earners can agree a formal case plan with the client in any case where it appears appropriate, but they must use a case plan for:

Legal Aid matters where the firm’s costs (including disbursements) are expected to exceed £25,000

Cases in the High Court

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Multi-party actions (as defined by the Legal Services Commission where 10 or more Public Funding Certificates have been granted)

All high risk matters

Whichever the fee earner decides upon, they must have regard to the client, for example mental capacity, their known language skills (or otherwise) and the possibility of undue influence or duress.

The case plan should show that the fee earner has considered carefully how best to achieve the client’s aims and objectives. This is a professional requirement under O1.5 and 1.12. Fee earners may have difficulty in settling a detailed strategy at the outset of a case, perhaps because they are unaware of the likely response of other parties at that stage. They must, however, present clients with a clear strategy (with contingency plans) for meeting their instructions as soon as possible, explaining how and why they might need to vary it.

In addition to the case plan, the fee earner must also complete and update regularly a file summary sheet which is placed on the inside front flap of the file.

7.2 undertakings

general guidance

Undertakings are not to be given lightly. Only a Partner may authorise them.

Chapter 14 of the Code of Conduct defines an undertaking as ‘a statement, given orally or in writing, whether or not it includes the word ‘undertake’ or ‘undertaking’, made by or on behalf of you or your firm, in the course of practice, or by you outside the course of practice but as a solicitor, to someone who reasonably places reliance on it, that you or your firm will do something or cause something to be done, or refrain from doing something’.

http://www.sra.org.uk/solicitors/handbook/code/part2/rule1/content.pagehttp://www.sra.org.uk/solicitors/handbook/code/part2/rule1/content.pagehttp://www.sra.org.uk/solicitors/handbook/code/part6/rule14/content.page

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An undertaking can therefore be oral.

O11.2 requires undertakings to be performed in the stated time or within a reasonable time. O11.5 requires the firm to maintain an effective system which records when undertakings have been given and when they have been discharged. O11.6 further requires that when an undertaking is given conditional on the happening of a future event and it becomes clear that the contingent future event will not happen, that the firm notifies the recipient as soon as it becomes aware of this.

You must apply the following rules:

All undertakings, save for standard undertakings on conveyancing matters, require a Partner’s consent or approval. This applies even if the fee earner is asked to give an undertaking to a Judge in Court. The fee earner must explain the firm’s policy and ask the Court for leave to telephone the office for authorisation

the firm does not have to give undertakings: there is no professional obligation on the firm to give an undertaking so do not offer one unless necessary

always obtain client consent before giving an undertaking. This ensures that clients cannot object to the firm performing the undertaking, and so that clients are taking decisions rather than the firm making them for the client

never give an oral undertaking

be sure that the firm will be able to honour any undertaking you give. An undertaking is binding, even if performance is outside the solicitor’s control. The wording must take into account that the firm will only do what is within its power: do not offer an undertaking, for example, that the client will perform a stated action. Failure to honour an undertaking has severe consequences for the solicitor and for the firm: it is treated as professional misconduct

don’t give an open undertaking; make each one for a specific amount and as detailed as possible. Ambiguous undertakings are generally construed in favour of the recipient

non-routine undertakings

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The firm rarely gives non-routine undertakings, ie those in a form other than those implied by one of the Law Society’s formulas. But where such undertakings are required:

the fee earner must:

complete the ‘Notification of Undertaking’ form, giving full details of the undertaking and why it is required, and forward it to the Senior Partner

If the Senior Partner authorizes the undertaking, he will:

notify the fee earner and sign and date the ‘Notification of Undertaking’ form, placing it in the central record of all non-standard undertakings. At this point the matter automatically becomes high risk and will be treated as such

place a red undertaking sticker on the outside front cover of the file showing the date the undertaking was given

When the undertaking is discharged:

the fee earner must notify the Senior Partner, and he will record this on the file and on the form in the Undertakings Register

the Senior Partner will cross through and sign the sticker on the front of the file

The file must not be archived until all undertakings have clearly been discharged and marked as such on the file closure form and in the central register.

‘routine’ conveyancing undertakings

The Code of Conduct does not exclude conveyancing undertakings from the above rules. Therefore you should record them. In practice, in residential or commercial conveyancing matters, the Head of Conveyancing maintains a list of matters:

which have exchanged

on which replies to completion information have been supplied

which have completed

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The Senior Partner will review this record on a monthly basis to ensure proper performance.

Undertakings on exchange and completion in conveyancing cases may be given only by the fee earner (and not by a member of the support team. The mere fact they might be considered as ‘routine’ does not mean to say that they are to be taken lightly.

‘Standard’ conveyancing undertakings must be explained to the client before they are given or arise as implied from a course of conduct. Even with ‘standard’ conveyancing undertakings, you MUST be sure that you can discharge them in accordance with their terms. So for example you must not exchange contracts on conveyancing matters unless the firm has sufficient cleared funds in its client account for the deposit and you have clear instructions to proceed. Where the firm is acting for joint clients you must obtain consent from all clients: the consent of one is not enough.

7.3 file management procedure

list of open and closed files

The Quill accounts system produces matter listings of open and closed files, and will list all files relating to a particular client (including linked files), and all files for a particular funder. Fee earners are required to check their own matter-listing monthly against physical files and to report any mismatch.

traceability

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All papers, documents and items in relation to client work must be traceable. This is also the indirect result of IB7.1. The firm has the following procedure:

Each file is labelled with the matter number, the client name, and the matter details. The fee earner or their PA takes the next available sequential matter number from the file opening book and enters it into the Quill accounts system

When a particular matter file is contained in a number of folders or lever arch files, they are shown as belonging to the same matter by use of the client reference number/name and an indication on each part, 1 of 2, 2 of 2

where there are ancillary documents they are placed in an appropriately coloured plastic wallet inside the file (see file organisation below). Fee earners are advised to consider copying sensitive items where loss could cause particular difficulty for the firm or the client

All deeds and Wills are placed in an envelope, clearly labelled with the client name and matter number, and stored in the fireproof safe. The Receptionist maintains a location list of deeds and Wills. A note is made on the file that the deeds are in the safe.

confidentiality

All computers and portable drives are password protected and all files are stored in cabinets.

Fee earners are discouraged from taking files out of the office. If however they do take files out of the office, they must take great care of them:

you must ensure that the files are in a briefcase or other suitable bag. The perils of carrying files in the street are well illustrated here

you must keep files out of view

you must not leave files lying around your house for family or visitors to see or read, as the same client confidentiality rules apply, wherever you are

you must leave a note on your desk or in your diary to indicate which files you have taken, so avoiding wasted time looking for files

no client information (in whatever format) is to be left in unattended vehicles, whether locked or not

http://www.sra.org.uk/solicitors/handbook/code/part3/rule7/content.pagehttp://www.lawgazette.co.uk/practice/council-solicitor-dropped-sensitive-papers-in-street/5042540.article#commentsubmitted

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you must be discreet when working in any public place, including on public transport, and consider who might overhear mobile phone calls on trains or in public places such as Court waiting rooms

temporary people are not allowed to remove anything from the office

you must remember that the client owns their file. You must not enter any derogatory, insulting or offensive material or any material that breaches the firm’s equality and diversity policy. Any such matter will be subject to disciplinary sanction

Client confidentiality is one of the professional principles set out in section 1 Legal Services Act 2007. The SRA considers confidentiality to be so important – it is one of the hallmarks of a solicitor-client relationship – that there is a whole chapter of the SRA Code of Conduct 2011 devoted to it. See Chapter 4.

The firm’s information management and security policy at Section 3.1 provides further advice on protecting the confidentiality of client information.

status of matters

The file should be a complete record of dealings on that matter. This means that all communications - attendance notes of meetings and telephone conversations, all letters, faxes, e-mails - should be placed on the file. It is the fee earner’s responsibility to ensure that the file is well maintained, but the firm expects the same standards from anyone assisting in a matter. In particular the file must:

note all conversations and communications of any substances on the matter

be kept up to date with regular and careful filing

be kept in date order with the latest material on the top

be kept tidy, with progress readily apparent to anyone who might need to check the position on the matter (as on holiday cover)

record all key dates and milestones on the file summary sheet so that anyone coming to it can see them at a glance

file:///C:/Users/jo.shortland/AppData/Local/Microsoft/Windows/Temporary%20Internet%20Files/Content.Outlook/HDCLPL3Z/section%201%20legal%20Services%20Act%202007file:///C:/Users/jo.shortland/AppData/Local/Microsoft/Windows/Temporary%20Internet%20Files/Content.Outlook/HDCLPL3Z/section%201%20legal%20Services%20Act%202007http://www.sra.org.uk/solicitors/handbook/code/part2/rule4/content.page

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Well-maintained files reduce wasted time and effort, ensure that others can easily check actions taken or required, and enable the firm to portray a professional and organised image to clients and to third parties.

file organisation

Recognising the importance of well-ordered files that are accessible to everyone in the practice, the firm’s file opening and management procedures are:

numbering

When opening the new file on Quill system, fee earners or their secretaries must enter the next unique sequential number into the Black File Book, together with the client name, matter, date, matter code, and fee earner.

The first two numbers denote the year in which the file was opened, and the subsequent numbers refer to the number in the sequence of files opened in that year, e.g. 96/021 (21st file opened in 1996).

All files that were opened at North End Road start with the letter N, followed by the last number of the year and the number in the sequence of files opened in that year, e.g. N6/155

DEPARTMENT MATTER TYPE MATTER CODE

Family Family Litigation FAM

Adoption ADO

Affiliation AFF

Divorce (Substantive) DIV

Injunction INJ

Magistrates Court MAG

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Maintenance MAI

Property Dispute PPY

Wardship/Guardianship WAR

Children Act CHA

Family Mediation Mediation MED

Conveyancing Conveyancing CON

Council House Purchase CHP

Estate Development EST

Freehold Sale FSA

Freehold Purchase FPU

Housing Association HAS

Leasehold Sale LSA

Leasehold Purchase LPU

Mortgage-Re-Mortgage MTG

Housing

Wills & Probate Wills WIL

Probate PRO

Trusts Tax & Investment

Trust Advice PRO

Financial FIN

International INT

Taxation and Advice TAX

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Miscellaneous Company CMY

Commercial COM

Advice ADV

Charities CHR

Licensing LIC

colour coding

A paper file is opened, labelled as set out in the traceability section above, and colour coded as follows:

Grey – housing litigation

Red – commercial litigation

Yellow – matrimonial

Pink – Legal Help

Coloured wallets within the paper file denote: green for Legal Aid matters - all public funding documents, including funding application forms, App8s,

Copy public funding certificates, Notice of FGF payments made to Counsel, Copy POA1s for private matters – bills

blue – disbursement vouchers and Counsel fee notes

red – applications, orders etc

yellow – briefs to Counsel

clear – client documents, statements etc

file set-up

A label with the matter number, client name and matter details is then attached to the front of the file.

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A file summary sheet is attached inside the front flap of the file and all initial client correspondence is then sent out by first class post.

All correspondence is attached to the correspondence clip, and related documents are placed in a wallet at the back of the file.

7.4 matter progression procedure

Delay is one of the principal causes of complaint to the Legal Ombudsman. It is also a reason for the SRA taking disciplinary action. The firm regards delay in progressing matters as unprofessional and unacceptable and so takes all appropriate steps to progress matters, including:

regular updates to the client with requests for instructions regular contact with other solicitors, experts and counsel

regular contact with introducers, providing frequent updates if the client has consented to this

respecting the Court Rules, in particular key dates

respecting the client’s timescales and advising them if these are unrealistic or cannot be achieved, with an explanation of why that might be and suggesting more appropriate timescales

To ensure that every matter is progressed in an appropriate manner, fee earners are required to:

record key information on the file – it should always tell the story of what has happened

diarise file management items (including sending key dates to the Receptionist for inclusion in the Key Dates Register) and ensure that file management items are progressed timeously

update the file summary sheet regularly

make full and systematic attendance notes of all conversations, meetings and actions

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whenever possible, return telephone calls and reply to correspondence same working day

provide the client with regular costs updates as the matter progresses. IB1.13 - 1.21 (inclusive) set out detailed requirements of what is expected, and in general the obligations are more onerous than under the predecessor rules. You are obliged to provide not only adequate fee information, but also an analysis of cost benefit, a statement of third party fees for which the client is responsible, and clear explanations of the implications of public funding or conditional fees (if appropriate)

notify the client in writing if there is a change in the person dealing with their matter. If the fee earner is leaving, you must inform the client in writing, preferably in advance, with the name of the person taking over the matter

7.5 procedure for using barristers, expert witnesses and external advisers

Where the firm involves outsiders in the service it provides to clients, it’s essential that the firm manages the risks and that the firm’s commitment to quality is still guaranteed.

Where the client has public funding, you must have regard to the Legal Aid Agency's guidance.

Where the client has legal expenses insurance, it is likely that the instructing of an expert (or counsel) will require the insurer’s prior approval. If so you must obtain this before instructing anyone, and you must not commit to the client until this approval is received.

When selecting counsel or other external experts, you should base your decision on matching the client’s needs and priorities with the most suitable person for the role taking into account the following criteria:

the area of law or expertise required

the complexity of the matter

http://www.sra.org.uk/solicitors/handbook/code/part2/rule1/content.pagehttp://www.legalservices.gov.uk/aboutus/7210.asphttp://www.legalservices.gov.uk/aboutus/7210.asp

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the timescale within which the report or service is required

the costs constraints of the client or their funder

expertise in the field

future requirements, eg will Counsel or the Expert be needed/available to attend the Court on the hearing

client empathy

The choice of external adviser should never be influenced by views (of the client or the adviser) contrary to the firm’s equality and diversity policy.

The first point of contact should be the list of approved counsel and experts, which is available to all staff in Russell Conway’s office. Fee earners can choose an adviser who is not on this list but, if the firm hasn’t used them before, they must discuss their suitability with Russell Conway and make a file note about why you have instructed them.

All recommendations for entry to or removal from the list should be made by submitting an email to Russell Conway, outlining the details of the expert and the reasons for your recommendation.

You should consult the client on the decision to involve an expert, and on the selection of that person. If a client suggests an expert that the firm would not approve of, you should mention the firm’s reservations, but the client has the right to override them. The only exception to this is where the client expresses a preference that contravenes the firm’s equality and diversity policy: if the client will not move, the firm should decline to act further. A client may require that the firm does not use a particular physician on grounds of previous adverse experience.

You must not give clients unrealistic expectations of what such persons can achieve.

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You should advise the client of the name and status of the expert or counsel, the likely timescale before a response will be received, and the likely cost if the client will be expected to pay, or could be asked to do so. The firm requires privately-paying clients to meet the costs of third party services and fee earners must ensure that appropriate sums are held on client account for this purpose. IB1.15 requires the firm to advise clients for any other cost that they might be responsible for: it does nobody any favours to ignore or to underestimate any such amounts.

Fee earners must evaluate performance of all experts used, which helps to inform the choices made by other members of the practice. See Appendix 7A. The Senior Partner keeps completed evaluation forms with the approved list.

giving instructions

The fee earner will normally instruct experts by letter, brief, or at a meeting. Where you provide oral instructions, you must confirm them in writing. Your instructions must be clear and must set out exactly what is required: you should place a note or copy of instructions on the matter file.

Instructions should include:

Our client’s name

Relevant background information

Specific issues in the case

Any facts relevant to those issues

The actual points on which advice/reports are required, steps to be taken or documents drafted

Relevant supporting material

http://www.sra.org.uk/solicitors/handbook/code/part2/rule1/content.page

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When fee earners receive an opinion or report from any counsel or expert, you must check to ensure that it adequately provides the information sought, and (in litigation) complies with the Court rules and any Court Orders. If you consider the advice inadequate, you should refer it back to the adviser, requesting the improvements you feel necessary to meet the firm’s expectations. If the standard of advice remains unsuitable, you should consider withholding the fee and recommending that person’s removal from the approved list, with a note for the file and the central record.

fees

Fee earners must not instruct counsel, an expert or agent, unless:

their fee has been agreed and the firm holds funds from the client to cover payment of those fees – OR

the fees are covered by a Public Funding Certificate – OR the Legal Aid Agency has agreed to payment on account

As and when experts’ fee notes are received, they are to be settled as soon as possible, and before the end of the case, unless a deferred payment arrangement is in place.

For Counsel in publicly funded matters, this will mean proceeding to taxation as soon as possible and informing Counsel’s clerk of any delays and providing public Funding numbers and such other information as may be requested.

As and when experts’ fee notes are received, they are to be settled before the end of the case, unless a deferred payment arrangement is in place.

7.6 file closure

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As soon as a client matter has been fully completed the file will be closed in accordance with the file closure procedure, which is as follows:

The file should be passed to a member of the support team who will send a closure pack to the client which includes the file closure letter (see Appendix 8A) and client satisfaction survey, plus any original documents or other property belonging to the client (or a request for the client to collect them).

The file closure letter includes:

a report to the client on the outcome of the matter

explains any further action the client is required to take and what (if anything) the Firm will do

advises the client whether they should review the matter at any stage in the future and, if so, when and why

sets out arrangements for storage and retrieval of any documents retained

A member of the support staff will then prepare the file closure form (see Appendix 7B) and pass it to the fee earner who will complete the final risk assessment.

The file closure form will then be passed with the file to accounts to confirm nil balances and to be signed off. If there is any outstanding money, accounts will notify the fee earner who will account to the client. You must ensure that all balances are at zero and that any client money is returned promptly to the client at the end of the matter.

Accounts will pass the file and the file closure form to the Supervisor for final review and risk assessment, and sign off. In conducting the final risk assessment, the Supervisor should consider whether there are circumstances that should be reported to the Risk Partner that might in turn, trigger a report to the insurers.

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The case will then be closed on the Quill accounts system.

archiving

Once the file closure process has been completed and the file closure form signed off at each stage by accounts and by the Supervisor, the file will be ready for archive.

All files for archiving are to be forwarded to the Senior Partner, Russell Conway, who will ensure that the closure form is complete.

The file will then be thinned and stored in the Firm’s offices for up to a year in case it is needed. After this, it is sent to the off-site storage facility. Storage is provided by Iron Mountain who collect files on request. Iron Mountain give the file a bar code and the reference number on the bar code is stored in the firm’s computer.

If anyone requires access to archived files, they should e-mail the Receptionist with the client name and file number. He will use this information to find the archive number, so enabling her to identify the relevant box number. The Receptionist will contact Iron Mountain who will return the file, subject to a fee.

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Appendix 7A

EXTERNAL EXPERTS FORM

File number File name Fee earner

Brief details of the work required

Name of counsel/expert selected

Reason/s for choice Comments

the timescale within which the report or service is required

the costs constraints of the client or their funder

expertise in the field

the complexity of the matter

client empathy

other

Feedback and evaluation (after completion of the work)

Comments on quality of expert instructed, areas of particular expertise or skill, etc (with reference to reasons for choice)

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Appendix 7B Closing letter Dear Re: your matter Thank you for your payment of £XXX in settlement of our invoice. I’m pleased to confirm that your matter is now completed/closed and ... Include a paragraph where you:

Report on the outcome of the matter

Advise the client of any further action they need to take and anything the Firm will do

Advise the client whether they should review the matter at any stage in the future

We will store your file in our archive for approximately 6 years. If you require access to it within this time, please contact our Receptionist and she will arrange for retrieval. Our archive is off-site, so please allow [x] working days before calling to collect your file. There will be a charge of £X for this service. In the meantime, I am returning the following papers to you: 1. 2. Thank you for instructing Oliver Fisher on this occasion. If we can help in any other way, now or in the future, please do let us know.

Yours sincerely

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FILE CLOSURE FORM

Client Reference

fee earner’s final checks Yes No N/A

All legal and administrative work on the matter is fully completed

The file is orderly and all papers are correctly and sequentially marked and identifiable

All transactions have been completed and/or registered

Accounted to client for any outstanding money, unless required for settlement of bill

The final bill has been sent out and has been paid in full

All disbursements have been paid

Any other outstanding monies have been agreed for write off by the firm

Any undertakings have been discharged and the discharge recorded on the register

Any issues and/or complaints raised by the client have been resolved

Final letter sent to client, including a report on the outcome of the matter with explanation of any future actions they or the firm are still required to take, and when the matter should be reviewed

Any required future actions by the firm or the client have been recorded

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Client satisfaction survey sent to client

Original documents returned to client

Advised client about arrangements for storage, destruction and retrieval of papers, and any related charges

Archiving administration completed

Projected date for file destruction recorded

fee earner’s final risk assessment

Has the firm met the client’s objectives?

If not, why not, and could the firm have done anything to ensure the objectives were met?

accounts authorisation Yes No N/A

The accounts ledgers are clear

Senior Partner file closure authorisation

Final risk assessment agreed Yes No N/A

Further action required. If yes, please provide details.

Contacted the firm’s professional indemnity insurers

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