The Missing Client File Before the Hearing
You are a pupil in a Nairobi firm. A client, Mr. Otieno, has a hearing tomorrow at 9:00 a.m. before the Environment and Land Court. The managing partner is out of the country and unreachable. You find that the physical file is missing - the last person recorded on the file movement register is an associate, Ms. Wanjiru, who left the firm two weeks ago. The e-filing portal shows the pleadings were filed, but the paginated bundle and the original title documents cannot be located. The client calls at 4:30 p.m. insisting that his witnesses will attend and that the matter must proceed. You have no authority to instruct counsel on your own, and no copies of the title documents exist in the firm's digital archive.
1. What is the immediate professional and practical course of action you should take, and why?
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Priority order:
- Do not conceal the problem. The duty of candour to the court and the duty to act in the client's best interests both require that the situation be surfaced, not papered over.
- Escalate internally. Even if the managing partner is unreachable, locate the supervising partner or another partner with authority. A pupil cannot make decisions about instructing counsel or seeking an adjournment alone.
- Contact the client honestly - explain the file cannot be located, that an adjournment may be necessary, and that witnesses should still attend in case the matter proceeds.
- Notify the court and opposing counsel early - an application for adjournment made at 4:30 p.m. the day before is far better than appearing without instructions or documents.
- Preserve evidence of the loss - record the file movement register entry, make a written note of steps taken, and consider whether the firm's insurer needs notification.
Reasoning: The pupil's duty is to act competently and honestly, to avoid misleading the court, and to keep the client informed. An unauthorised appearance without the bundle risks the client's case and a professional conduct complaint.
2. The associate who left is suspected of removing the file. What should you do, and what should you not do?
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Should do:
- Report the suspicion to the responsible partner immediately and in writing.
- Preserve the file movement register and any access logs.
- Seek the firm's guidance on whether to contact the former associate or the police; do not do so unilaterally.
- Advise the client of the possibility that documents are with a third party and of remedies (e.g., obtaining certified copies from the lands registry or court).
Should not do:
- Do not accuse the former associate directly or in writing - that risks defamation and breaches confidentiality.
- Do not contact the former associate's new employer.
- Do not alter records to cover the gap.
- Do not promise the client a specific outcome or compensation.
Reasoning: Suspicion is not proof. The pupil's role is to escalate and preserve evidence, not to investigate or make allegations.