Are Litigation Lawyers Working for Their Court Clerks?

Introduction 

Take a look at your file room. Consider the number of files stored and the documents within each file—from the writ to the judgment. Every one of these processes was filed by a clerk. For each process filed, the clerk received transportation and filing fees. There are some unsung costs you may have forgotten. Admit it: your clerk may have handled more funds than you. So, are you working for your clerk, or is it the other way around?

In Ghana, litigation lawyers heavily rely on office court clerks to manage various court-related tasks, making these clerks indispensable to their practice. However, the lack of formal management structures creates significant challenges, including inefficiencies, potential financial misuse, and the undervaluation of clerks' roles. On average, the court clerk—often seen as the "execution officer" in terms of filing processes—"sees, feels, and touches" more funds than most lawyers in the firm.

The Role of Law Clerks in Litigation

Law clerks serve as the backbone of litigation processes in Ghanaian litigation law firms. Their responsibilities include filing court processes and conducting searches, following up on execution processes. They also collaborate with bailiffs to ensure service of court documents and auctioneers or court sheriffs in execution of judgments.  Effectively, they act as agents for the lawyer and serve as the liaison between the litigator and the courts.

Despite their critical roles, most clerks are poorly paid, lack formal legal education, and often have only secondary school qualifications. They learn on the job, gaining practical knowledge without a deeper understanding of the legal and financial implications of their work. This combination of factors makes them a necessary but often underappreciated asset in litigation practices.

Financial and Operational Risks Associated with Clerks

The role of the law clerk is closely tied to financial responsibilities. In fact, all their activities are fully funded by the client, lawyer or the firm. Thus, they handle significant sums of money daily, including Filing fees for court processes, Transportation allowances and Motivational bonuses to ensure that officers do their work on time. With this, it is possible for the clerks to see, feel and manage more cash than the average lawyer in the office. 

The absence of proper oversight and control mechanisms creates opportunities for financial misuse, including pilfering and overcharging. Other contributing factors include lack of familiarity among lawyers and law firm accountants with court filing fees and charges, absence of vehicles or motorbikes for clerks, leading to untracked transportation costs and manual handling of cash payments, increasing the likelihood of financial mismanagement.

Proposed Systems to reduce monies in the hands of clerks

A duty is imposed on the lawyer under Rule 27 (2) of the Legal Profession (Professional Conduct and Etiquette) Rules, 2020 to keep books of account and proper records.  The monies that are used for filing are often monies given by clients for filing of their processes in court. This money is meant for the client account. It can also be a reimbursable item done using the law firm’s funds. Proper tracking of court expenses also falls in line with the managerial authority of the managing partner. See Rule 44 of L.I. 2423.

The following proposals can help reduce the financial risks associated with clerks:

1. Know Filing Fees and Charges: Most lawyers do not know that the filing fees and charges are governed by law. In fact the CIVIL PROCEEDINGS (FEES AND ALLOWANCES) RULES 2007 (C.I. 55) and its consequent amendment rules (See DennisLaw) gives the details of all the fees on the various court processes that is supposed to be filed. Knowledge of these cost will help the lawyer and the firm have a fair idea of expense to be incurred before the clerk is instructed.  
2. Avoid Late Filings: One of the areas that a litigation lawyer becomes most vulnerable is when there is urgent or late filing or service. Whenever something has to be urgently done, the lawyer or firm would end paying beyond what is suppose to be paid. Favors may have to be called in for the job to be done. This is where the lawyer and the firm are at mercy of the clerk and the clerk may have to be given an amount to ensure that the work is done. To reduce the risk of paying out more money to the clerk to ensure that the work is done, please reduce or avoid late filings.
3. Implement Digital Payment Systems: Using various digital platforms would help reduce the amount of cash transaction. Adopt a no cash policy with regards to amount that is sent to the clerk for filing. This would assist the firm to track and reconcile amounts sent to the clerk. A lawyer whose case is in a court on the e-justice platform may use their online filing systems to eliminate the need for clerks to physically visit court registries for filings.
4. Formalize Clerk Training Programs:  Lawyers and firms should provide basic training for clerks on court filing fees, financial accountability, and the ethical implications of their work. Educating clerks on the legal framework surrounding their roles and the consequences of financial misconduct will foster better accountability.
5. Track Transportation Costs: If the firm owns a car or motorbike, tracking transportation costs becomes easier. Installing trackers on vehicles or using prepaid fuel cards can monitor usage. For firms without vehicles, establishing standard billing for transportation—using benchmarks like Uber or motorbike rider fees—can improve oversight.
6. Introduce Accountability Systems; Law firms can institutionalize expense tracking by developing standardized forms for recording court-related expenses, including transport and miscellaneous costs. Assigning a senior staff member to review and approve clerks’ expenses weekly or monthly enhances accountability.
7. Adopt Proper Management Practices: Whether a lawyer would be working for the clerk or not would be dependent on the management practices of the lawyer. In most solo or small firms there is no Segregation of Duties. The Law clerk is a messenger, chef, librarian amongst others with no clear-cut designated roles. There is the need to Limit the clerk’s role to his hiring and furthermore reduce his access to cash by delegating financial transactions to designated finance officers.  Periodic Audits conducted by the lawyer or the firm would identify discrepancies and prevent financial misuse.
8. Performance Reviews: Evaluate clerks periodically based on their adherence to protocols and overall efficiency.

Conclusion

The law clerk is a necessary component of litigation practice. They play a critical role in managing court processes and often become the spending officer for the litigation lawyer. However, the lack of knowledge about filing costs and inadequate management systems can increase financial risks for lawyers. By adopting these proposals, lawyers can reduce cash handling by clerks, ensure accountability, and maintain better control over client funds. These measures may not be foolproof, but they represent significant steps towards more efficient and transparent law firm management.