File Transfers
How do I get my file?
What procedure must a lawyer follow to transfer the file after they have withdrawn, or what if I go to a new lawyer or want to handle my matter myself?
The lawyer should, as soon as can reasonably be expected, provide an invoice (if there are outstanding fees or disbursements) and provide an accounting of any funds held in trust. If the lawyer is withdrawing from a client’s matter, they must advise the client that they no longer represent the client and that they will forward the file to whomever the client directs, once the payment arrangements are made (if applicable).
The lawyer should then review the file to prepare for transfer. They should determine whether there are any outstanding undertakings or trust conditions owed to any other lawyers or parties. The Code of Professional Conduct requires lawyers to fulfill every undertaking given and honour every trust condition once accepted. Therefore, the lawyer will have to ensure either that all undertakings and trust conditions are satisfied or that the successor lawyer will honour the given undertakings or trust conditions (with the consent of the person who imposed them). If neither is possible, and the terms cannot be amended in writing, the property that is subject to the trust condition will have to be returned to the person who imposed the trust condition. The lawyer should then inform the client of any such returned documents/funds.
The lawyer will then review the file and assemble “all papers and property to which the client is entitled.” What this includes (and doesn’t include) is detailed below.
Who owns the contents of the file? What documents is the former client entitled to?
Lawyers are required to deliver all papers and property to which the client is entitled in an orderly and prompt manner. As a general rule, the client owns the entire contents of the file. However, the former lawyer and the former law firm may be entitled to withhold some documents that are rightfully the lawyer’s own property. Notwithstanding the lawyer’s or law firm’s right to withhold certain documents, there is nothing preventing the lawyer or law firm from providing those documents to the successor lawyer or to the client, if the lawyer or law firm so choose.
The former lawyer generally owns any documents that the lawyer created for the lawyer’s own benefit, and for which the client was not charged. They may have been created in relation to work done for the client’s benefit, but they remain the lawyer’s property. They include:
The lawyer’s working notes, created, for example, to aid the lawyer’s memory; Ethical consultations with the Law Society.
The former law firm generally owns any documents that the lawyer created for the law firm’s benefit and for which the client was not charged. They include:
- Time entry records;
- Calendar entries;
- Accounting records;
- Conflict searches;
- Office administration forms (pre-bills, cheque requisitions, etc.);
- Intra-office memos, and;
- Communications between lawyers at the former law firm.
The remaining documents on the file belong to the client and should be transferred along with the file. They include, without limitation:
- All documents created before the lawyer was retained;
- Memoranda of law;
- Court documents;
- Witness statements;
- Notes from meetings or telephone attendances with clients or other persons outside of the lawyer’s firm, and;
- Correspondence (client instructions, advice given, opinion letters, general letters, emails, disbursements receipts, expert witness statements, reports).
What fees can the lawyer charge to transfer the file?
The labour involved in going through the file or preparing it for transfer should be minimal. Therefore, in most circumstances, there should be no charge to the client to transfer the file. If the circumstances are unusual and substantial labour is involved, the lawyer ought to consider the following factors to determine if it is appropriate to recover transfer fees:
- Amount of work required to facilitate the transfer, including dealing with materials under trust conditions, negotiating payment arrangements with successor lawyer;
- The number of files to be transferred and the actual lawyer time taken away from attending to other client matters;
- Additional work completed 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
- Overall, the reasonableness of the amount charged.
The lawyer may wish (and is entitled) to retain copies of documents in case they are required to defend against a negligence claim or a complaint. However, this is done at the lawyer’s expense.
To whom can the law firm release the file?
Subject to a valid solicitor’s lien (see below), the client can request his or her file and the lawyer is required to account for and deliver it to the client or to whomever the client directs. However, if the client wishes to attend at the office to retrieve the file, a lawyer cannot withhold the file from the client due to such a preference. The exception to this may be, as noted above, in relation to materials held by the lawyer under trust conditions or undertakings. Lawyers cannot transfer trust conditions or undertakings to non-lawyers, so if the client attends to retrieve their own file, these materials may need to be sent back to the lawyer from whom they were originally received under the trust conditions/undertakings.
If there are unpaid fees, does the lawyer have the right to hold onto (assert a “solicitor’s lien”) over the file?
When discharged, the lawyer must account for all funds on hand or previously dealt with and issue an invoice for outstanding services. A lawyer has the right to hold onto any property belonging to the client, including his or her file, until the client has no account outstanding with the lawyer/law firm. This is referred to as a solicitor’s lien. However, the lawyer should make every effort to settle the outstanding amount with the client and should not enforce a lien if doing so would “materially prejudice” the client’s position in a pending matter. What counts as “material prejudice” will depend on the circumstances of the particular matter. However, courts have upheld the lien where a client’s interests can be preserved by allowing access to the file; for example, by allowing the client to inspect the documents at the lawyer’s office.