Managing the risks when staff leave

The departure of a practitioner is a common trigger for professional negligence claims. When file transitions are not managed carefully, critical dates are missed, correspondence goes unread, and clients are left without effective representation, sometimes for weeks.

The most common mistake the LPLC sees after a practitioner's departure is a missed critical date caused by inadequate handover. Contributing factors include:

• no file review by the principal before the departing practitioner leaves

• failure to diarise critical dates in the incoming practitioner's calendar

• the incoming practitioner lacking the expertise or capacity to manage the inherited files

• the departing practitioner's email account not being monitored after they leave.

These are systemic failures, not individual ones. They occur in well-run firms when there are no clear procedures on how to manage the situation, where departure planning starts too late or responsibility is not clearly assigned.

In one matter reported to the LPLC, a firm knew months in advance that a client would follow a departing practitioner. After the practitioner left, their inbox was not monitored regularly enough, and no one took responsibility for the file as it was going to be transferred. A settlement offer from the opposing party went unread. The matter proceeded to trial at the new firm, the client lost, and the earlier firm faced exposure for a claim for adverse costs and the cost of the lost litigation because of their handling of the transition and the missed opportunity to settle the matter.

Within one week of notice

• Review the departing practitioner's file list to assess the type, complexity and volume of each matter.

• Designate a responsible principal and incoming practitioner for every file. Record these assignments in writing and circulate them within the firm.

• Require the departing practitioner to prepare a handover memorandum for each file. Each memorandum should include:

• upcoming and other critical dates

• factual background and key issues

• current status and next steps

• client contact details

• links to all key documents and advice.

• Diarise every critical date from each memorandum in the incoming practitioner's and the principal's calendars immediately.

Within two weeks of notice

• Schedule a file-by-file handover meeting between the departing practitioner, the incoming practitioner and the supervising principal. Do not leave this to the departing practitioner's final days. The earlier it occurs, the more time remains to clarify issues and ask questions.

• Notify each client in writing of the change in practitioner, the name of the incoming practitioner and the firm's continued commitment to the matter. Where a client wishes to transfer to another firm, obtain written transfer authority promptly.

On the departing practitioner's final day

• Confirm that all handover memoranda have been completed, reviewed and signed off by a principal. No file should remain unassigned.

• Redirect the departing practitioner's email and phone to the supervising principal or a designated recipient. Set a daily review schedule for the redirected inbox for at least 30 days.

In the weeks following departure

• The principal must actively supervise the incoming practitioner's management of inherited files. Do not assume the incoming practitioner has the same skills or knowledge as the departing practitioner. Check file progress at least weekly for the first month.

• Assess capacity honestly. If the firm cannot service inherited files to the required standard, consider temporary practitioners, briefing counsel, or referring the client to another firm. Continuing to hold files the firm cannot properly manage creates greater risk than letting them go.

Until a retainer is formally terminated in writing and the file is transferred, the firm owes the client the same duties as any other current client. When transferring files:

• obtain written authority from the client before releasing any documents

• review each file to ensure documents and data not being transferred, including confidential metadata in electronic files, are removed

• confirm termination of the retainer in writing to the client.

The LPLC has three resources designed to be used at the moment a practitioner gives notice. Download and complete them as part of the transition process, not after the practitioner has left:

• LPLC’s checklist : File transition - practitioner is leaving the firm

• LPLC’s template: File handover list

• LPLC template: File transfer to another firm

Print the file transition checklist and attach it to the departing practitioner's personnel file on the day notice is received. It is the single most effective step a principal can take to ensure no file is overlooked during the transition.