Dropping the Ball on a File Transfer: Rule 48 Dangers for Ontario Lawyers

This post is by Ian Hu, claims prevention & praticePRO counsel at LAWPRO.

When a file is transferred from one lawyer to another, one danger is when nothing happens on the file due to a clumsy transfer or missing critical information. A new file that has not been looked at can be a ticking time bomb. Deadlines like limitation periods can pass by unnoticed, and Rule 48 administrative dismissal dates can be discovered too late. The resulting malpractice claim can have lawyers pointing fingers at each other. Consider the following tips whether you’re transferring a file or on the receiving end: the biggest tip is lawyers involved in a transfer should ensure big events like deadlines and dismissal dates are communicated up front.

If you’re transferring a file:

Obtain a written direction from the client before transferring a file. Transfer the file quickly upon receiving the written request. In addition to cleaning up a file for transfer, consider writing a cover letter detailing upcoming deadlines and dismissal dates. The cover letter may also include a brief summary of the theory of the case including liability and damages, where the case is at in the litigation, what immediate action is necessary, and any unusual circumstances. The lawyer you are transferring the file to knows nothing about the case, and a short summary goes a long way. And if the client could have a potential malpractice claim against you, keep a copy of the file.

Remember that if you are the lawyer of record on court documents, the court does not know any different until a notice is sent to the court. It can help to obtain an undertaking from the new lawyer that a notice of change of lawyers will be sent to the court by a certain date. Transfers within the law firm may not need a notice, depending on who has ultimate carriage of the file.

Typically the client already knows the file will be transferred (or you will have received written direction as above). But this is not always the case, as when lawyer with carriage of the file suddenly leaves the firm (but leaves the file behind) or becomes unavailable for health or other reasons. Ensure the client knows who is handling the file at all times. Depending on the circumstances, this can be advising the client directly, or by obtaining an undertaking from the new lawyer to advise the client.

If you’re the new lawyer on the file:

If you are on the receiving end, advise the client and the previous lawyer that you are not retained until you receive the file. It is essential to draw the line clearly between when you are retained and not retained. Once you have received the file, immediately review the file for upcoming deadlines and dismissal dates. Under the new Rule 48, lawyers will not be notified by the court that a dismissal date is looming. It is up to you to figure out what the dismissal date is and to take the necessary action. Our Rule 48 Transition Toolkit provides two tools that can be useful. The Individual File Checklist includes a flow chart to help you determine the relevant dismissal date of a file, and the File Progress Plan charts each step in the development of the file. If both tools are completed, you have taken some of the biggest steps towards protecting yourself from a Rule 48 dismissal or a lost deadline.

If the transferring lawyer does not provide you with any information regarding deadlines and dismissal dates, consider requesting such information. This may help ease the transition and prevent any surprising gaps. If needed, request information about the status of the file from the court.

File a notice of change of lawyers once you are in a position to do so, such as when the transferring lawyer has provided you with the file and the important dates and deadlines. Let your client know you now have carriage of the file and meet with the client to review.

It’s a tricky time when a file is being transferred

When a file is being transferred there is a chance that both the transferring lawyer and the new lawyer taking over do not look at a file until it’s too late. The transferring lawyer may think that it’s no longer going to be his or her file and stops working on it (even though the lawyer of record continues to be the transferring lawyer). The new lawyer may not know what is important on the file and what needs to be done immediately. Don’t get caught unawares with passing dates and deadlines. It is important to ensure files are reviewed as soon as is practicable. Important dates can be properly tickled and action can be taken well within timelines. A ounce of prevention can go a long way toward avoiding malpractice claims when a file is being transferred.

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