For the Public

Common Concerns

File Transfer

 
What documents on the file is the former client entitled to?  Which documents belong to the client and which documents belong to the lawyer?

Lawyers are required to deliver all papers and property to which the client is entitled in an orderly and expeditious manner.  This includes all documents that came into existence before the lawyer was retained, documents which have been a necessary part of the business transacted between lawyer and client, and documents for which the client has paid, or is liable to pay for the preparation.  The former lawyer and successor lawyer are required to co-operate with each other, which normally includes the former lawyer providing any memoranda of fact and law that have been prepared by the lawyer in connection with the matter.   Documents prepared by third parties during the course of the retainer and sent to the lawyer are the property of the client, unless they were prepared at the lawyer's own expense.

However, there are some types of documents which the lawyer is entitled to keep.  To withhold documents from a client, the lawyer most show that: the lawyer was under no duty to prepare them; the document was not prepared for the benefit of the client; and the client cannot be regarded as being liable to pay for them.  For example, a lawyer's notes are the property of the lawyer, other than notes from conversations with witnesses if the trial has not yet taken place or if the matter has not yet settled.  In addition, documents sent by the client to the lawyer during the course of the retainer with the intention that, at the time of delivery, ownership of the document would pass to the lawyer, are considered the lawyer's property.

What fees can the lawyer charge to transfer the file?

The primary consideration for transfer charges is determining which party will benefit.  If the lawyer merely wants to keep a photocopy of the file for the lawyer's benefit (to protect against any future allegations of negligence or misconduct, for example), the cost of copying documents owned by the client is borne by the lawyer. 

If the labour involved in going through the file or preparing it for transfer is minimal, there should be no charge to the client, however in certain situations, reasonable fees may be charged.  For example, time spent on determining which file documents belonged to the client and which belonged to the lawyer and preparing transfer memoranda for new counsel may be charged to the client as it will be to the benefit of both the client and the successor lawyer.  Factors to be considered when determining if it is appropriate to recover transfer fees include:

• preparation time, complexity of the case, and the benefit to the client;
• the number of files to be transferred and the time taken away to attend to other client matters;
• the reasonableness in facilitating the transfer so that the successor lawyer can avoid repeating work already completed by the former lawyer;
• the amount of advance notice of termination by the client; and
• the reasonableness of the amount charged.

If there are unpaid fees, does the lawyer have the right to assert a solicitor's lien over the file?

Upon discharge by a client, the lawyer should account for all funds of the client on hand or previously dealt with and refund any remuneration not earned during the employment.  The lawyer should promptly render an account for outstanding fees and disbursements.  The obligation to deliver a client's papers and property is subject to the lawyer's right of lien over the file for unpaid fees, although the lawyer should make every effort to have the claimants settle the dispute and have due regard to the effect of its enforcement upon the client's position. Generally speaking, the lawyer should not enforce such a lien if the result would be to prejudice materially the client's position in any uncompleted matter, however, where the client's interests can be preserved by allowing access to the file, courts have upheld the lien subject the client's right to inspect the documents at the lawyers office.

When transferring a file from one lawyer to another, the new lawyer should request transfer of the file from the prior lawyer; if the prior lawyer has not been paid, then a retaining lien may be asserted by refusing to hand over the file unless arrangements can be made with the client of the new lawyer to pay or secure the account.  The client can provide security for the account or the new lawyer may provide an undertaking to pay the account, however, where there is a valid solicitor's lien, there is no obligation on the prior lawyer to accept an undertaking or security instead of payment before giving up the file.  If the client does not consent to the prior lawyer's account, the account may be assessed by the court or if satisfactory arrangements cannot be made to address the outstanding reviewed account, the client my apply for a court order directing the prior lawyer to deliver the file to the new lawyer.  The receiving lawyer has an ethical obligation to assist in collecting the original lawyer's account by urging the client to attend to payment or otherwise securing what is owed to the former lawyer.