Review your files regularly

Risk Management is as much about good housekeeping and good management as it is about good legal advice. An important aspect of this is the good management of files so that, for instance, every file is readily locatable and all work is regularly reviewed.

File management

The Society’s Better Client Care and Practice Management Manual contains much practical guidance on the opening, tracking, reviewing, closing, retaining and destroying of files.

File review/audit

It is good practice to keep all work under review and one of the most effective and efficient ways of doing this is to review your files regularly. There is guidance on this in the Risk Management Flow Chart and Model Procedures issued by the Society in March 1999.

Independent file reviews provide a means of monitoring:

• management of time limits and deadlines
• compliance with the firm’s own systems and procedures
• client care issues – regularity of reporting to clients, speed of response
• workloads

These reviews can also provide an early warning of anything untoward such as fee earners not coping or out of their depth; conflicts of interest; signs of dishonest conduct.

These are all issues which are relevant to management of risk and avoiding client dissatisfaction.

Transferring files

When taking over responsibility for a piece of work in progress, particular care needs to be taken to avoid the temptation to make assumptions about the file which may prove to be incorrect.

You might assume, for instance, that the information about the client and the client’s instructions in the file are correct in every respect; that everything you would have done at a particular stage of piece of work will have been done; that critical dates have been properly ascertained and diarised. That may not be the case.

The circumstances in which you are taking over responsibility for the file may be such that it is dangerous to assume that matters will have been dealt with properly. The colleague may have left the firm for another job, may have moved departments or retired.

In all of these circumstances there could be reasons why matters have not been attended to as well as they might prior to your taking over the file. The colleague’s mind may have been on other matters for some time prior to leaving/handling over the file. The colleague may have been under pressure to finalise as much work as possible prior to leaving and that pressure may not have been conducive to attention to detail.

Perhaps the colleague has gone off ill, in which case his work may have been suffering from a lack of concentration in the days before taking sick leave. The colleague may have been anxious about a more serous medical condition.

Perhaps you have been passed the file as someone experienced in a specialist areas of work by a colleague who recognised that the work was outwith his or her experience. Depending on the stage at which the file was passed on, a certain amount of work may have been done already.

In all of these circumstances, more than a cursory file review is appropriate. The file needs to be read thoroughly to ensure that everything done to date is correct; that nothing has been omitted and that none of the crucial facts have been misunderstood or mis-recorded.

If it is practicable, review the file while the colleague who has been dealing with it is still in the office and available to discuss and clarify any areas of doubt.

Whatever the circumstances in which someone is handing over the conduct of a piece of work, that fee earner should be encouraged, with the reassurance that there will be no recriminations over honest mistakes, to identify any problem of which the fee earner is aware. The same goes for someone leaving the firm. They should be encouraged to make a disclosure about any file which they consider could present a potential problem. That is in everyone’s best interest.

Remember to tell the client whenever there has been a change of responsible fee earner. If this is a case where you have been passed the file to deal with a specialist matter, make sure you agree with your colleague who is communicating with the client and who is keeping track of time limits and deadlines.

‘Skeleton files’

What is a “skeleton file”? Everyone, at some stage, has a file on which they get a mental block and which they find themselves incapable of progressing for whatever reason. Once a file becomes a “problem file”, it can become more and more difficult to overcome the mental block. There is a serous danger in these circumstances that the client will become dissatisfied because of delay or the lack of any communication. These files can become a distraction and can certainly cause stress. Most critically, there is a risk of missing a time limit or of a contentious matter becoming time barred.

File management and time management skills need to be applied to ensure that files are not neglected. “Skeleton files” present a particular challenge. You need to be disciplined about scheduling time to deal with these files and planning to address the outstanding issues. Otherwise other work will always receive attention in preference and the “skeleton file” will always be left till later.

‘No blame transfer’

Why not consider having an arrangement whereby you can ask a colleague to look at any “skeleton file” of yours on a “no blame”, no recriminations basis and on the basis that you would do the same for them? The point that creates a mental block file for you, may be straightforward as far as your colleague is willing and able to solve. Ideally, you get the file back with a suitable letter, checklist or other document drafted and ready for you to action. Some firms have gone so far as to have this file swapping arrangement documented as part of their office risk management procedures.

‘No fear’ culture

For the arrangement to work effectively, there needs to be in the firm an open, “no fear” culture where no one has any difficulty discussing problems with colleagues and no one is afraid of the repercussions of owning up to getting stuck or making a mistake. One of the senior partners of a major practice makes clear to assistants that it is unlikely they will be sacked for making an honest mistake but that they might be sacked if they don’t own up to having made the mistake!

For sole practitioners with no qualified staff, this arrangement is not so easy to operate, however it may be possible to set up a similar arrangement with a fellow sole practitioner. Issues of client confidentiality may prevent this operating in quite the same way as it can within other firms, however the facts of the problem file could be described to the counterpart without mentioning names.

Alistair Sim is Associate Director at Marsh (formerly Sedgwick Professions)

The information/advice in this page is (a) advice on practical Risk Management and not on legal issues and (b) is necessarily of a generalised nature. It is not specific to any practice or to any individual, nor should it be relied on as stating the correct legal position.