A recent situation brought this into question at JPC Law and is a common issue for many solicitors firms - how much of a file actually belongs to a client?
A common misconception is that your client is entitled to their file in its entirety. However there may be documents or correspondence that you do not want a client to see, for instance if you had concerns about undue influence or their credibility and wanted to document this, for example in a file note or a memo to a partner. Therefore the key question to consider is who owns the documents, the solicitor or the client?
The Law Society has published some guidance on this issue. Documents that come into existence during the retainer can usually be allocated into one of the following categories:
(a) where the solicitor is acting as a professional adviser
(b) where the solicitor is an agent of the client.
Ownership of the documents in the first category depends on the purpose of the retainer and whether the production of the document was a stipulation of the retainer. Documents in the second category usually belong to the client.
Examples of documents belonging to a client include: original documents sent to the firm by the client; final versions of documents, the object being the purpose of the retainer (e.g. an agreement), final versions of documents prepared by a third party during the course of a retainer and paid for by the client (e.g. Counsel’s Opinion).
Examples of documents belonging to the firm might include: documents prepared for the firm’s own benefit or protection, (e.g. file copies of letters, drafts and notes made for protective purposes regarding advice to the client); copies of internal emails and correspondence created during the course of the retainer and emails written by the client to the firm; accounting records and instructions.
It is worth bearing in mind that even where a document belongs to a client, you may be able to retain it if you can exercise a lien in respect of unpaid fees. It is also worth consulting your firm’s own terms and conditions as they may set out exactly which documents belong to the firm.
Ultimately, caution should always be exercised when considering a request from a client for their file of papers. A starting point is to read the file thoroughly, in particular to check the content of internal file notes and to consult your firm’s compliance office.
Catherine Burgess is a solicitor at JPC Law.
For more information and advice, please contact her:
T: 020 7644 7283
T: 020 7625 4424