Liens and file transfers – what must I hand over and when?

Legal Practice Directors of incorporated legal practices are required to ensure they have appropriate management systems in place, but the QLS Ethics and Practice Centre recommends all practices (whether ILP, sole trader or partnership) have appropriate management systems in place.1

There are 10 areas identified in which appropriate management systems ought to be implemented in order to comply with the Legal Profession Act 2007 (Qld). Providing for the timely resolution of document/file transfers is one of the 10 areas.

The most common form of lien is a legal practitioner’s right to retain client’s property (with some exceptions) until the solicitor’s legal costs and disbursements are paid.

This month, the centre is highlighting resources to help you ensure you have appropriate management systems in your office in respect of exercising of a lien, and the timely transfer of file records.2 Keep a lookout on the QLS Solicitor Support LinkedIn Group and Instagram for further posts.

The centre will look at:

  • For law firms what are the common form of liens?
  • When can I exercise a lien?
  • What things can I hold under a retaining lien?
  • Can I exercise a retaining lien over an original will, passport or legally-aided client file?
  • If I am exercising a lien over funds held in trust, how much money can I retain pursuant to a lien?
  • Can I accept a form of security for my unpaid costs instead of a lien?
  • Can I exercise a retaining lien over all files of the client even if I am only owed money on one file?
  • Can I exercise a retaining lien where there is a joint retainer?
  • What documents should I hand over when presented with a file transfer request?
  • Should I retain a copy of the records provided pursuant to a file transfer request?
  • How do I provide electronic file records to (a) a former client or (b) another practitioner?
  • Can I exercise a retaining lien if the client has a key date due?
  • What is the fruits of a litigation lien?

Importantly, are all of your staff trained on what is a lien and when it may arise? Do your staff know what items a practitioner may hold under a lien? What processes do you have in place to respond to requests to transfer files? Are your file records and financial details up-to-date to enable you to promptly issue a final bill?

The Practice Advisory Service is a complimentary service for sole/micro practices across Queensland. For more information or to book a practice visit contact the QLS Ethics and Practice Centre on 07 3842 5843 or email ethics@qls.com.au.

Footnotes
1 Legal Profession Act 2007 (Qld), s117(3).
2 Legal Services Commissioner v Devery [2011] QCAT 390.

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