The Law Society has recently issued a new practice note on the sometimes vexed question of ownership of a solicitor's file, drawing together the strands of previous piecemeal guidance.
In essence, the following categories of documents will generally be owned by the client:
- Original documents sent to the solicitor by the client
- Documents sent or received by the solicitor as agent of the client, eg correspondence with third parties
- Final versions of documents, eg agreements
- Final versions of documents prepared by third party, eg counsel's advice and expert reports.
In contrast, the following categories will generally belong to the solicitor:
- Documents prepared for the solicitor's own benefit or protection, eg working papers etc
- Copies of internal emails and correspondence, and correspondence written by the client to the solicitor
- Accounting records.
An interesting change is that the new practice notes clarifies that only the "final versions" of documents belong to the client. Documents prepared "as the means by which the firm discharges its function" (eg drafts and working papers generally) belong to the firm. This is a departure from previous guidance which suggested that any documents prepared by solicitors which were paid for by the client either directly or indirectly – including drafts and most attendance notes - belonged to the client.
Solicitors should also consider the following:
- Even if documents belong to the client, a solicitor may be entitled to retain those documents if the solicitor is exercising a lien in respect of unpaid fees
- A solicitor's terms of engagement may alter the general rules set out above and may also stipulate that documents (regardless of ownership) will be destroyed or a charge will be made for recovery of documents from storage
- The position is more complicated where a solicitor has a joint retainer, eg acting for lender and borrower and the Law Society has issued specific guidance on this issue which should be carefully considered.