13.9
File Transfer and Retention Obligations

In addition to providing notice as discussed above, Code of Conduct Rule 3.7-7 requires that you:

  • deliver all papers and property to which the client is entitled, subject to any applicable solicitor’s lien (discussed in more detail below);
  • give the client all relevant information, subject to any applicable trust conditions;
  • account for all funds then held or previously dealt with and refund unearned fees;
  • promptly render a statement of account;
  • cooperate with new counsel; and
  • comply with the Rules of Court, if applicable. 

If there is a dispute as to ownership of the contents of the file, take time to research the law to determine which documents belong to the client. Generally speaking, the client is entitled to the legal file, including all documents for which they have paid, but some documents on the legal file may belong to you as the lawyer and do not form part of what the client is entitled to receive. 

The client is not to be charged for the first copy of those file documents to which they are entitled. However, if the client has already been given a copy (or the original) and requests another copy, then the firm may charge the client a photocopying fee for the extra copy as requested by the client. 

See the Law Society resource on File Retention and Document Management

File Retention

Note that Rule 119.37(1)(f) of the Rules of the Law Society of Alberta requires firms to retain those parts of client files necessary to support the financial records prescribed by the Rules for at least the ten-year period following the fiscal year in which the file was closed. Make sure that you keep all documents that you are required to retain (e.g., trust accounting records). 

It is important to also keep copies of documents that might help you defend against an action for professional misconduct, negligence or allegations of professional misconduct. You may copy these documents at your own expense. 

See Module 9 on File Retention and Disposal

Transferring a File to New Counsel

When you withdraw your services and are advised that the client has retained new counsel, you should first confirm in writing the client's permission for you to communicate with the new counsel. 

Remember that you still have an obligation to preserve client confidentiality and, absent client consent, you may not disclose the reasons for your withdrawal in circumstances where the reason for withdrawal arose from confidential client communications.  

Once you have established what you can transfer to new counsel and what you must retain (or retain copies of), provide the file to new counsel promptly. You must cooperate by providing memoranda of fact and law that you have prepared, but confidential information not clearly related to the matter should not be divulged without the consent of the client.

Many complaints to the Law Society arise from delays in transferring a file. If you have a large file and require time to ensure the file is complete and that you have retained the copies you require, it is wise to advise the new lawyer of the delay and the expected date the file will be ready for transfer or pick up. Depending on the circumstances, if the delay may prejudice the client, you should ask the new lawyer which documents they require promptly and provide those right away to assist in a smooth transition that does not harm the client’s interests.

<13.8 Applications to Withdraw

13.10 Solicitor’s Liens >

Last modified: Friday, 18 December 2020, 11:33 AM