By Michelle Castle and Andrew Bailey -
Snapshot
- Ownership of the documents on a solicitor’s file is determined by reference to factors including the ordinary principles of agency, the purpose for which the document was brought into existence, and whether or not the client was charged for the production of the document.
- Where a lien is asserted, whether a court will order production will depend on which party terminated and whether it was for good cause.
- Where the solicitor terminates for good cause the court has a discretion to order production. Where the client terminates, there may be no discretion for the court to order production without payment of costs to the solicitor.
- The Solicitors’ Rules largely mirror the common law.
Retainers between solicitors and clients may be brought to an end by either party for a variety of reasons. Where at the conclusion of the retainer the client indicates that the documents on the file belong to him, her or, in the case of a company, it: is this proposition correct? If the documents belong to the solicitor, can the client still get access to them?
Issues of ownership of documents are determined by reference to decided cases by characterising the type of document concerned. However, questions of ownership are often considered alongside issues of access, particularly in the face of a solicitor’s lien, and often the issue is not ownership but access.
In the course of this article we will consider the principles applied to determine ownership of documents on a solicitor’s file; the basis on which application can be made for production of the client’s documents; the usual answer to production by way of the solicitor’s possessory lien and two possible responses to the lien arising in the authorities; and lastly, albeit briefly, the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) (‘Solicitors’ Rules’).
