Whose file is it anyway: What should a solicitor provide to a client when met with a request for "the file"?
The Law Society has published new guidance on what a solicitor should do when a client requests a copy of its file.
Last year we reported on how solicitors should react (other than groaning and wondering whether to alert the insurers) when met with a request for their file from a client. The Law Society has now issued an updated practice note on the subject.
It is important to remember that a client, despite popular belief, is not simply entitled to 'the file' i.e. every piece of paper or electronic document which relates to their matter. Some documents will belong to the solicitor, and they aren't obliged to hand those documents over if they don't want to. The Pre-Action Protocol for Professional Negligence expressly prohibits fishing expeditions (which claimant lawyers and clients often forget when making such requests) and there is no requirement to consider whether the documents are relevant or not when simply responding to a file request, so a solicitor should not feel pressured in to handing 'the lot' just because it has been requested. The true position is rather more nuanced than that.
The Law Society splits documents into two categories: 1) where the solicitor is acting as a professional advisor and 2) where the solicitor is an agent of the client. Based on the usual agency principles, the latter documents will normally belong to the client and they will therefore be entitled to them. However, ownership of documents in the former category will depend on the purpose of the retainer and whether the production of the document was a stipulation of the retainer. The Law Society therefore makes the following suggestions (which apply to both paper and electronic documents):
Documents belonging to the client:
• Original documents sent to the firm by the client (unless title was intended to pass to the firm)
• Documents sent to or received by the firm as agents for the client e.g. correspondence with counsel or experts
• Final versions of documents which go to the object of the retainer e.g. agreements or written representations
• Final versions of documents prepared by a third party and paid for by the client e.g. counsel's advice or expert reports
Documents belonging to the firm:
• Documents prepared for the firm's own benefit or protection e.g. file copies of letters written to the client, notes regarding time taken or made for protective purposes regarding advice to the client
• Drafts and working papers
• Internal emails and correspondence
• Emails and correspondence written by the client to the firm
• Accounting records including disbursement vouchers and timesheets
The guidance doesn't specifically address the question of attendance notes. Usually these are prepared for the solicitor's benefit (i.e. confirmation of the advice they gave to protect their position should a claim be made, and to remind them of the advice as the file progresses) and aren't charged for in any event. These would therefore fall into the category of notes made for protective purposes and would belong to the solicitor – whose client has already had the benefit of the oral advice anyway. It is worth being careful though if the production of the note has been agreed by the client e.g. a note of a conference with counsel prepared for the benefit of the solicitor, counsel and the client (which the solicitor would presumably charge for). In such circumstances, the note probably does belong to the client.
Don't forget that, despite the above list, a solicitor can exercise a lien where its fees remain unpaid even in respect of documents which belong to the client – and we have seen courts uphold this (although we have seen them allow inspection in such circumstances). The above can also be overruled by any provisions for ownership of documents in the firm's terms and conditions, so don't forget to check those either. Your terms and conditions could also provide that the firm make a charge for search, retrieval and return of documents to the client so keep an eye out for this too.
Further, don't forget the tactical advantages that could be gained in handing over documents belonging to the solicitor - there is no point in having a smoking gun document but withholding it on a technicality.
We should note that solicitors will need to give careful consideration where they have more than one client. In particular, the Law Society's note provides further advice for those acting for lenders as well as purchasers and is worth a look. We should also note that all of the above relates to requests for files only and not to either responding to requests for documents in a letter of claim or disclosure obligations once in litigation, both of which are stories for another day…