Update, 21 December 2017: An English costs judge has made a decision about whether clients can demand, as of right, further copies of lawyers’ documents already received by the client (e.g. file copies of letters from lawyer to client). He said no, not even if they want them to work out whether to seek taxation of costs. The decision does not say, of course, that the Court would not order production in any case, but rather simply says that clients have no entitlement to them, even if they offer to pay for the copies. The case is Green v SGI Legal LLP [2017] EWHC B27 (Costs). A note about it is here.
Original post: This post is like a case book(let) rather than a text. It sets out the raw materials which bear upon the question of who as between solicitor and client owns (in the sense of is entitled to the original of) what documents typically found in a solicitor’s file. It is very long, and largely unsummarised: a resource to go back to rather than something to trawl through now. It is the product of reading Wentworth v De Montfort (1988) 15 NSWLR 348 (the subject of this separate companion post), the leading case on the question in NSW, and the cases which have considered it since. One day, hopefully, I will do a shorter post summarising the principles.
The state of the law is a scandal. For a start, it is ridiculously uncertain. To the extent it is certain, it is ridiculously difficult to interpret. These deficiencies give rise to abuse. An appropriate law would be that every client ought to be entitled to inspect the whole of a solicitor’s file, and ought to be able to have the whole of the original. Even smart institutional clients do not stipulate for this when negotiating retainers. Presently, the law (or an interpretation of it which is universally tolerated in Victoria) allows solicitors to take bits out of the file and give the client only what remains, so as to leave them with an incomplete whole, a thing without internal integrity, nothing but one part of the jigsaw of the past, an aid rather than a map for the reconstruction of past events. It is little known that the lien will trump an obligation in the solicitor to discover the file to the client (though the solicitor must discover the file to others). In fact, the solicitor is obliged to give discovery but not to allow inspection: Hammerstone Pty Ltd v Lewis [1994] 2 Qd R 267, a case I have caused to be put into play successfully twice, once in the Magistrates’ Court and once in VCAT’s Legal Practice List.
Solicitors’ Professional Conduct and Practice Rules, 2005 (‘7. Ownership of Clients’ Documents – Termination of Engagement’) provides Continue reading “Ownership of documents on a solicitor’s file”
