What procedure must the withdrawing lawyer follow to transfer the file?
The lawyer should as reasonably as practicable render an account, provide an accounting of any funds held in trust, and advise the client that he/she no longer represents the client and he/she will forward the file to whomever the client directs, once the payment arrangements are made (if applicable).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. He/she should determine whether there are any outstanding undertakings or trust conditions. 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 constitutes is discussed further in the next section.
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 their 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;
- 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:
- 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.
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. Some lawyers prefer to release the file directly to the successor lawyer. This is acceptable as long as the client consents. 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.
If there are unpaid fees, does the lawyer have the right to assert a solicitor's lien over the file?
When discharged, the lawyer must account for all funds on hand or previously dealt with and render an invoice for outstanding services. A lawyer has the right to hold a client’s property, including his or her file, until the client has no account outstanding. This is referred to as a solicitor’s lien. However, the lawyer should make every effort to settle the dispute and should not enforce a lien, if doing so would materially prejudice the client’s position in a pending 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.