On occasion, a solicitor’s firm may find itself in dispute with its own client. This can happen, say, in a case where there is a disagreement over the legal bill or when a client wishes to change advisors. In these types of situations, a firm may find a client demanding that “their” file be released but the firm is reluctant to do so immediately (particularly where a legal bill is in dispute). In cases such as these it may be necessary to consider who owns the file, what the contract between the parties says, and what personal data a client may be entitled to.
Ownership – When a solicitor acts in a case, the documents which are created fall into two categories:
a) Those where the solicitor is acting as a professional advisor; and
b) Those where the solicitor is acting as an agent.
If a firm has simply been sending or receiving documents on behalf of a client (i.e. not providing professional advice), then they would be acting as an agent. In this situation, the documents belong to the client. If a firm has been acting as a professional advisor, then the general rule is that the documents belong to the firm. If the documents belong to the firm, then it may be fair and reasonable to insist, for example, that any outstanding fees are paid before a file is released. This is known as exercising a lien on the file, and we will consider this in more detail in a moment.
The contract – In addition to deciding who owns the file or when a firm is entitled to exercise a lien, it is also possible that the firm’s contract with the client will provide guidance. This contract is often referred to as the firm’s retainer and will usually be set out in a client care letter. The terms and conditions contained in a normal client care letter will usually provide guidance on issues such as ownership, when documents will be stored (and destroyed), and when charges may be made for searching and returning documents.
General Data Protection Regulations (GDPR) – It is also worth considering a firm’s obligations under the GDPR relating to the storage of personal data. A client could make a subject access request (SAR) for all personal data held by a firm, including that held on a disputed file. Often the easiest way to comply with a SAR is to provide a copy of a document, but this type of request only gives a right of access to personal data. This means that it may not necessarily include a right to a full copy of documents on a file. So, for example, if a client demanded a copy of a draft will (which for argument’s sake they have not paid for), then there would be no obligation to provide a full copy of this document. You could simply provide a description of the document and what personal details it holds. The requirements of the GDPR is a developing area so new case law may develop, but in a recent decision in the case of Hanley v J C & A Solicitors Ltd [2017], the judge said that there was currently no binding case which ordered a firm of solicitors to hand over papers which the firm owned.
Liens and clients who refuse to pay – It has long been the case that solicitors are entitled to something called a lien over a client’s file. This is a remedy that has long been upheld by the courts and can be traced back to Roman law. At its simplest, a general lien is a right for a firm to keep a client’s property (such as the legal file) until such time as the client has paid their bill. At common law, Halsbury (an encyclopaedia of English law) describes a general lien as a right “to retain goods for which charges have been incurred until those charges are paid”.
It may not come as much of a surprise that an issue such as rights of ownership would be a matter which is more complicated than it first appears, particularly when it involves lawyers and their business. Releasing a file to a client or another firm of lawyers is a normal part of business. However, in some situations where there is a dispute with a client, it is helpful to understand what rights and rules could apply to your firm.