Typically, lawyers handle a file from start to finish and will then retain and store the majority of the file materials. Throughout the file, lawyers will likely provide the client with copies of significant documents and correspondence.
When the file is concluded, lawyers should ensure the client has originals or copies of all documents of importance or interest and should keep a record of the documents the client received. One way to do this is to provide a final reporting letter to the client which lists the documents that are returned and provided, and to retain a copy of this letter on the closed file. The client should also be advised when the file is scheduled for destruction and of any file retrieval fees which may be applicable in case the client may wish to obtain a copy of any file materials in the future. Even if this has already been contemplated in the original retainer, it is a good idea to remind clients of the potential cost associated with closed-file retrieval so that they can request additional copies of any file materials before they are stored off-site.
Some firms also contact clients 60 or 90 days prior to file destruction to advise that the file will be destroyed unless the client wishes to retain it in their possession. In that case, the entire file may be sent to the client. Any copying of file contents is at the cost of the firm unless the full file has already been provided to the client. If the client cannot be located, the destruction proceeds as scheduled.
If the lawyer is required to transfer the file to new counsel before the matter is concluded, and if the lawyer wishes to make copies before transferring the file, this must be done at the lawyer’s cost. The lawyer is entitled to a copy, even if the client objects to the lawyer making one.
On transferring the file, it is an unreasonable trust condition to expect the successor lawyer to keep the file in the same order and state, or to provide the transferring lawyer with the file at a later date if they are sued or the subject of a complaint. The file belongs to the client and it is inappropriate to put restrictions on its future use and transfer. This is another reason why lawyers should maintain a copy of the file themselves.
A lawyer must not give property held under trust conditions to the client or a new lawyer unless new terms are negotiated with those parties to whom the lawyer owes obligations.
Note that the Law Society Rules require the lawyer to copy the client file materials if the client is taking the file, rather than new counsel (Rule 119.34(6)). This Rule is focused on the file materials which support the trust accounting records, rather than the entire client file.
If the lawyer has routinely informed the client of the file’s progress by providing copies of all incoming and outgoing correspondence and documents, the client may already have a significant portion of the materials to which they are entitled. While the lawyer does not have to recopy what has already been provided, the client may be entitled to other parts of the file (original documents, memos of calls and meetings, etc). In practice, it may be difficult, time-consuming and impractical to try to distinguish what belongs to the client and what the client has already received; lawyers may ultimately find it more efficient to simply duplicate the entire file when the contents are requested by the client or new counsel.