Who owns what in a client file?

This question usually arises after a client dismisses the solicitor and requests that the file be transferred to a new solicitor. The first solicitor transfers the file, but withholds certain documents (normally file notes or aide memoires). The former client protests. How is this to be resolved?

The starting point is rule 14 of the ASCR. This rule requires a solicitor, on completion or termination of a solicitor’s retainer and when requested by the client, to give to the client, or a person authorised by the client as soon as reasonably possible, any documents related to the retainer to which the client is entitled, unless the solicitor claims a lien over the documents for costs due to the solicitor by the client.

The application of rules 14 and 15 is subject to any contrary court order about the client’s documents.

Not all documents on your file will be the property of the client. Many documents on a client file are your property. The distinction becomes important in two respects once the client retainer has come to an end:

• the client is not entitled to documents that are your property and
• you may retain possession of documents that are the client’s property, if these documents are lawfully in your possession, and there are costs owing to you by the client.¹

Appendix C of the ASCR Commentary provides some examples of what may be classified as client as opposed to solicitor documents.

The Commentary notes that documents prepared by you for your benefit and for which a charge is made, and documents sent to you by the client, the property in which is intended to remain with the client, are the client’s property.

Hope JA in Wentworth v de Montford (Wentworth)² said:

A number of considerations can be discerned … as being relevant in the determination of ownership. These include whether or not the client was charged for the creation of the document, and whether the solicitor created the document for his client’s benefit or protection, or did so for his own benefit and protection.

It is fairly clear that documents existing prior to the start of a retainer and delivered to you or sent to you by the client or by a third party during the retainer are held by you as agent for the client or third party.

Documents which come into existence during a retainer and for the purpose of delivering legal services for the client fall into four broad categories:³

1. documents prepared by you for the benefit of the client and which are paid for by the client are the client’s property;
2. documents prepared by you for your own benefit or protection, the preparation of which is not regarded as chargeable to the client, belong to you;
3. documents sent to you by the client during the currency of the retainer, the property in which at the time it was sent was intended to pass from the client to you, belong to you;
4. documents prepared by a third party during the retainer and sent to you (other than at your expense), belong to the client.

Documents prepared by you for the benefit of the client and which are paid for by the client are the client’s property

An example of the first type of document that is prepared by you for the benefit of a client is a statement taken by you when interviewing a witness. Although the statement is taken for the benefit of both you and the client, it is likely that you will also charge the client for the statement being taken. At the end of the retainer this is a document which the client would be entitled to receive. You can keep a copy for your own risk management, but you would not be entitled to charge the client for the copy.

What of the notes made by you of a telephone conversation with a person other than your client, but relating to your client’s matter?⁴ For example your client is seeking to recover money that the client says was lent to X. You call X and X gives their version of the matter or makes admissions. Your notes of the conversation, although made for your benefit and or purpose, are primarily made to benefit the client. The memorandum is a client document. Dal Pont suggests that the main inquiry is to ascertain the predominant purpose for creating the document.⁵ So in the example above the memorandum of your conversation with the debtor X contains information that furthers your former client’s case. It is important to the client that the record of the conversation be available to the client.

Documents prepared by you for your own benefit or protection, the preparation of which is not regarded as chargeable to the client, belong to you

Documents that are your property would include documents such as inter-office memos allocating work to be done on a client file, documents prepared by you for your own assistance in carrying out your work,⁶ for which no charge is made, and requisition forms prepared respecting the payment of a disbursement for a client.

In McGrath v Macrossan & Amiet⁷ Mackenzie J had to consider an application by a former client of the legal practice relating to the preparation of Mrs McGrath’s will and severing of the joint tenancies of certain properties held by her and her husband. Before the application was brought, her husband died.

Mrs McGrath said she recalled little of her appointments with the solicitor. She was contemplating bringing an application to avoid the severance of the joint tenancies and seeking a re-conveyance of the properties.

To do this she was seeking access to the file notes maintained by the solicitor. She sent an authority to the firm requesting all files, documents and papers held on her behalf.

The firm was not prepared to provide the solicitor’s file notes. The issue was whether the file notes were the property of the solicitors. The firm identified 11 file notes prepared by the solicitors who attended on the applicant and her late husband. It was deposed that the notes were prepared in the performance of their professional duties, with respect to which privilege was claimed. No fees were charged to the clients with respect to the production of these notes.

The court noted the submission that the class of documents that are a solicitor’s property “are those brought into existence solely or predominantly for the [solicitor’s] own benefit or information in the course of performing its retainer and for which the clients were not charged”.⁸ The sole issue before the court was whether the affidavit of the solicitor laid a sufficient basis to establish this ground. The court noted that the respondent’s apparent intent of the statement as a claim that the documents were the solicitor’s alone was sufficient in the absence of other evidence to establish the ground relied on. The application was refused.

Where a mixed purpose document is being considered the predominant purpose of that document will be the prevailing consideration.

Documents may be the property of one or more clients. Such documents, if they are client documents, should still be made available to the requesting client. The original should be held but a copy should be made available. An explanation as to why a copy rather than the original has been sent should be provided to the client. You would be entitled to charge a reasonable photocopy fee.

Additional considerations

Documents which are held, but which are not the property of the client, should not be sent to the client.

You should not suggest that the whole of the file is being delivered, where such a statement is misleading or deceptive.

It is always advisable to retain copies of the documents returned to the client for risk management (although no charge to the client for the copying should be made). 

1 Gino Dal Pont, Riley Solicitors Manual (LexisNexis Butterworths, 2005) [3180.1].