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A Standards Committee fined a lawyer $1000 for undue delay in providing files to his former client’s new counsel, while the client was awaiting sentencing. While the Committee acknowledged that Covid-19 restrictions were in place for most of the relevant time, it did not accept that adequately explained the three months it took to hand over the files.
The client was in custody and was being assisted by his father. The father complained, saying that, after the lawyer was abruptly unable to complete the retainer, he requested the files numerous times “without success”. The client’s new counsel only received the files more than three months after the end of the retainer.
The Committee noted that rule 4.4.1 of the Conduct and Client Care Rules provides that:
“ … upon changing lawyers, a client has the right either in person or through the new lawyer to uplift all documents, records, funds, or property held on the client’s behalf. The former lawyer must act upon any written request to uplift those documents without undue delay …”
The Committee noted that what constitutes “undue delay” depends on the individual circumstances. While the lawyer had not explained the delay to either the complainant or the Committee, the Committee itself acknowledged that Covid-19 restrictions had been in place for some of the relevant time. However, the Committee did not consider that on its own sufficiently explained the delay, where the lawyer had failed to answer the complainant’s queries and did not offer an explanation to the Committee. In those circumstances, the Committee concluded that the lawyer had breached rule 4.4.1.
The Committee determined that the breach amounted to unsatisfactory conduct, albeit at the “lower scale”. The Committee fined the lawyer $1000, reflecting that lower level of conduct.