It is not unusual once you have instructed a professional, such as a solicitor, to want a copy of your files, especially if you think something has gone wrong.
However, you may not be aware of the limitations on what, when and how you can request a copy of your files.
How can you get a copy of your file?
As a client, if not specifically reference in the terms and conditions, you are in any event entitled to request a copy of your file (subject to some of the limitations discussed below).
If the firm fail to comply with your request for a copy of your files, then you could complain internally, externally to the Legal Ombudsman or refer the matter to the Solicitor Regulation Authority.
Alternatively, increasingly since the introduction of GDPR in May 2018, you could make a general Subject Access Request (“SAR”).
Again the Law Society has guidance for solicitors on how to comply with a SAR.
Each firm should have a policy on SARs, but they may need to verify your identification before compiling within the one month deadline.
If the firm fails to comply or properly comply with your SAR, you can refer the matter to the Information Commissioner’s Office.
If litigation against the firm is contemplated, then you may wish to request early disclosure under the Pre-Action Protocol for Professional Negligence or consider the necessity for an application for pre-action disclosure. However, this should not be a cover for a ‘fishing expedition’ or embarked on lightly given the costs and risks involved, so should be a last resort if the above fails.
What documents are you entitled to from your file
Unfortunately it is a misconception that many clients have that they are entitled to everything in their file.
In January 2019 the Law Society updated guidance on who owns the file.
Usually the client owns documents:
- they sent to your firm, except where ownership was intended to pass to your firm
- sent or received by your firm acting as the agent of the client
- produced when you were acting as a professional adviser to the client, and one of the purposes of that relationship was to create the document. Examples are agreements or written representations
- prepared by someone else, including the client’s other advisers, during their relationship with you, and paid for by the client. For example, opinions of counsel and experts’ reports
Usually your firm owns:
- documents prepared for your firm’s own benefit or protection
- documents prepared to help your firm do its job, for example file copies of letters written to the client, drafts and working papers
- internal communications created during the retainer
- communications written by the client to your firm
- accounting records, including vouchers and instructions
A SAR (under article 15 of the GDPR) is a request to see a copy of the personal data that is being held and processed by the firm relating to the data subject (you). It is not the same as a right to see the copies of documents containing that personal data.
In most cases, the easiest way to comply with a SAR is to send you a copy of the whole document containing the information, but you should be aware that this is not a legal obligation. A solicitor could just summarise to you the information held and processed without actually providing you any of the documents itself.
There are exceptions to a SAR (contained in Article 23 of the GDPR) which may limit what is provided to you from the file, such as:
- legal professional privilege (Ittihadieh v 5-11 Cheyne Gardens RTM Co Limited (2018))
- confidentiality (Dawson-Damer v Taylor Wessing LLP (2017))
During litigation especially in professional negligence claims, there will be general rights of disclosure as well as potential to request specific disclosure.
If your case is being litigated in the Business and Property Courts of England and Wales, then since 1 January 2019 the disclosure pilot will apply, which is intended to encourage co-operative disclosure at an earlier stage in the proceedings.
What about a solicitor’s lien?
This is the ability of a solicitor to hold property belonging to the client (such as files) pending payment of their fees – it is long recognised right in common law but also embodied in the Solicitors Act 1974 (s73(1)).
If you are instructing replacement solicitors, then usually the new solicitors will offer to preserve the previous solicitor’s lien in exchange for the file of papers.
A client may have to consider whether it is better to pay the fees owed (under protest) just to get their files but recognising that this may not give them everything they need.
It is worthwhile noting that a lien does not displace a client’s right under a SAR and a court can in any event order production of the files under s68 of the Solicitors Act 1974.
A client should bear in mind why they want a copy of their files – what it is in the files that they really want to get hold, so that they can assess the correct approach to obtaining this information bearing in mind the pitfalls identified above.
A solicitor should not be obtrusive for the sake of it and comply with all reasonable and proportionate requests so that any issues can be identified and even dealt with early on.
In the past I have seen most file requests being answered with a complete and full copy of the file (even mundane items like internal accounts request slips), but as solicitors become more savvy about their obligations and the limitation of their client’s rights, I think file requests will become much more filtered.