Q&A corner

 

A: The answer is largely dependent on the stage at which the solicitor is at in their career. 

It has been long established that a departing partner is entitled to contact clients for whom he or she has acted personally as the responsible partner and invite them to continue
to be clients at the new firm. 

It is advisable, however, that all partners agree as to the procedure in advising clients of the change and agree a joint communication, as a failure to do so may alienate the client.

The position of an associate/assistant differs from that of a partner. Unless there is agreement (or a contract of employment) with the current firm to the contrary, an associate/assistant is not entitled to inform clients that they are moving on. It may be the case that the client does wish to continue to instruct the associate/assistant in their new role. However the approach must be from the client. 

There is an exception to this, however, in cases where clients have the benefit of legal aid and the associate/assistant is the nominated solicitor named on the legal aid certificate. It was established in McKinstry v Law Society of Scotland 1997 SLT 510 that the assistant or associate is indeed the solicitor of the client while he or she is the nominated solicitor in terms of legal aid. It follows that an employed solicitor who is a nominated solicitor is obliged to advise the client of a move and if the client wishes, is entitled to continue as nominated solicitor.

Being the nominated solicitor is a mandate to act. However, it is important to bear in mind that it is for the client to decide whether the nominated solicitor continues to be instructed or the client remains with the firm. 

Interestingly, the team were recently asked if a trainee solicitor who was about to complete their traineeship and had been offered a newly qualified position in another firm was able to seek mandates from clients. For the avoidance of doubt, the position is the same for a trainee as it is for assistants and associates.