When a lawyer-client relationship ends, a common yet critical question arises: who owns the documents in the lawyer’s file? Clients naturally want access to these documents, either for their records or to assist their new legal representative, while lawyers may have an interest in retaining certain files for their protection or administrative purposes.
This issue of document ownership has been addressed by Ontario courts and the Law Society of Ontario, providing useful guidance for both clients and lawyers.
Courts in Ontario have offered practical guidelines distinguishing between documents that belong to the client and those owned by the lawyer. The foundational principles are laid out clearly in the leading case of Aggio v. Rosenberg and expanded upon in other resources such as Cordery on Solicitors and the Supreme Court of Canada’s decision in McInerney v. Macdonald.
What Documents Belong to Clients?
According to Ontario case law, as summarized by Master Sandler in Aggio v. Rosenberg, clients generally own:
- Documents provided to the lawyer before or during the retainer, such as original contracts, wills, powers of attorney, agreements, transfers, and corporate seals.
- Documents specifically created by the lawyer on behalf of the client, paid for by the client, such as original signed agreements or court documents.
- Third-party correspondence or documents sent to the lawyer during the representation, such as expert reports or letters from opposing counsel.
In short, the client typically has ownership rights over any document that directly relates to their legal interests, or which was generated for their benefit and paid for by them.
What Documents Belong to the Lawyer?
Conversely, lawyers retain ownership of documents created primarily for their own administrative use, internal protection, or at their own expense. These may include:
- Internal notes, working papers, and summaries.
- Correspondence to and from the client, including instructions from the client.
- Time entries, dockets, and accounting records.
- Internal memos and recordings of conversations, except for those directly with witnesses relevant to the client’s case.
These documents generally serve the lawyer’s internal administrative or protective purposes rather than the client’s direct legal needs.
When lawyers transfer files upon ending their representation (due to discharge or withdrawal), special rules apply. The lawyer must deliver all documents that the client owns and cooperate fully with the successor lawyer to ensure minimal disruption to the client. Lawyers must balance their entitlement to assert a solicitor’s lien (a right to retain documents until outstanding fees are paid) with their professional duty to minimize inconvenience and expense to their former client.
The Supreme Court of Canada in McInerney v. Macdonald provided additional clarity in the analogous context of medical files, emphasizing that even when certain physical documents (like medical records) are owned by professionals (doctors or lawyers), there remains a fiduciary obligation to provide clients or patients with reasonable access to the information those documents contain.
In the legal context, this highlights that even if a lawyer owns certain internal documents, a client may still have rights of reasonable access to the information within those documents, provided it directly impacts their interests.
Takeaways:
To avoid confusion and conflict, clients and lawyers should:
- Clarify document ownership and access rights at the beginning of the retainer.
- Communicate clearly when terminating or transferring files, to identify documents belonging to each party.
- Lawyers should remain mindful of their professional obligations under the Law Society of Ontario’s Rules of Professional Conduct when managing and transferring files.
Knowing who owns the documents in a lawyer’s file is critical when managing your legal affairs effectively. Clear communication and adherence to established legal and professional standards help avoid disputes and ensure smooth transitions when lawyer-client relationships change.
Thanks for reading!
Sumit Malhotra