The owner of the documents in the client file depends on the role in which the solicitor is acting, either as an agent of the client or as a professional adviser.
In the instance that the solicitor is acting as an agent to the client, the nature of the documents is primarily correspondence between the solicitor, on behalf of the client, and third parties. These documents belong to the client, on the normal principles of agency.
If the solicitor is acting as a professional adviser to the client, the ownership of documents is dependent on whether there is a contractual arrangement between the client and the solicitor. If such an agreement exists, then whomever is the agreed owner of the documents is clear.
The following guidance is in the instance that the solicitor is acting as a professional adviser but there is no clear agreement as to the ownership of the documents.
The following are categories of documents which belong to the client:-
- Original documents sent to the firm by the client (except where title was intended to pass to the firm).
- Documents sent or received by the firm as the agent of the client (including communications to and from third parties).
- Final versions of the documents, where the object of the retainer was the production of said documents (including such documents produced by third parties, during the retainer, paid for by the client)
The following are categories of documents that belong to the client:-
- Documents prepared for the firm’s own benefit, protection, or to carry out the firm’s function (file copies of letters, time records, drafts, working papers generally etc.)
- Copies of internal email and correspondence created during the retainer (including all correspondence written by the client to the firm)
- Accounting records
There is no distinction between electronic or hard copy files that would result in one of the above categories not being satisfied.
The Client’s rights:
Subject Access Requests
Where a client makes a Subject Access Request (SAR) under Articles 12 and 25 of the GDPR, solicitors are asked to provide access to all personal data contained in the client’s file. The scope of an SAR only gives the client the right, or rather the firm the responsibility, to produce the personal data of the individual making the request.
As such there is no obligation for the firm to produce entire documents relating to the case, or even originals. It suffices the regulations of an SAR to corroborate all the personal data that exists on the case file into a new document, redacting other information. Alternatively, the firm could provide the originals with all other information redacted from the document, aside from the personal data requested.
The Firm’s obligations:
Firms may ask for evidence of identity upon a data access request and should complete Data access requests within one month (although this period could be extended by up to two more months, in very limited circumstances).
Transferring Files From One Solicitor To Another
Who Owns What?
There are two reasons why a transfer of files to a second solicitor outside the original solicitors’ firm may occur: either the client is advising a secondary solicitor for the case, or the client has decided to change their primary solicitor.
In cases where the transfer occurs because the client has decided to change their primary solicitor, having checked there are no outstanding undertakings, the original solicitor must hand over the file, documents, papers, monies and all items to the client who will then hand them to the new primary solicitor. Documents, letters, and file notes prepared for the original solicitor for his/her own benefit, for which the solicitor has not charged the client, belong to the original solicitor and may be retained by him/her.
Solicitors must keep a copy of the file for, at a minimum, the relevant statutory periods outlined in the Law Society’s ‘Data Retention and Destruction of Paper and Electronic Files’.
If there is more than one client for the case, the original solicitor must have consent from both clients to proceed with any transfer of files.*
Exercising A Lien:
In respect of unpaid fees, a firm could exercise a lien whereby, despite belonging to a client, the firm can retain the documents. This also applies to documents that were created before the retainer was created. This applies to any documentation: however, this does not override the client’s rights under the General Data Protection Regulation (GDPR).
The courts have adopted this approach where the lien has been terminated by the original solicitor. When this occurs, the courts may instruct the transfer of files from the original solicitor to the new solicitor against an undertaking whereby the new solicitor must preserve the lien of the original solicitor.
The court can also set aside liens. In instances where the original solicitor has delayed the deliverance of a bill of costs, or if there are no outstanding costs or outlays and they have refused to hand over the file, the second solicitor can issue a special summons under the Solicitors and Attorney Act, requiring the production of the files and other papers.
A lien can also be set aside by the Legal Services Regulatory Authority via a direction pursuant to the provisions of section 60 of the Legal Service Regulations Act 2015.
With regards to documents owned by the firm, it is the firm’s prerogative to determine whether the request made by the client is reasonable and whether the firm wishes to comply with the request.
If you would like to get in contact with Barrett & Co’s Litigation Team, please do not hesitate to contact us on 0118 958 9711 or [email protected].
Get in touch
Hilary Buckle offers a fixed fee initial meeting of one hour to discuss your personal circumstances, your options and your next steps, at a cost of £95 (inc VAT).
Hilary specialises in all aspects of private client work, including Wills, trusts and probate matters. She is a member of the Thames Valley branch of the Society of Trust and Estate Practitioners, Solicitors for the Elderly (SFE) and an associate member of ACTAPS (the Association of Contentious Trust and Probate Specialists).
If you would like to know more or arrange a fixed fee appointment, please email her at [email protected] or call her on 0118 958 9711.