This is the first of a two-part blog series on a lawyer’s obligation to produce a former client’s file. This blog (Part 1) addresses file delivery to a client (for example, on a change of retainer), which is governed by the law of file ownership. My subsequent blog (Part 2) will address the different obligation that arises when a former lawyer is sued in negligence and must produce their file in discovery pursuant to the Rules of Civil Procedure.
The Underlying Ownership Question
Few requests seem more routine than a client, or a client’s new lawyer, asking for the file on a change of retainer. Yet such a common request conceals a genuine legal question which is often overlooked.
What must be handed over turns on the ownership of each document — a question distinct from the litigation-discovery obligation examined in Part 2 of this series. The difficulty lies in determining which of the file contents are owned by the client and which are owned by the solicitor or the firm. The file ordinarily contains correspondence, pleadings, and research, alongside internal notes, memoranda, and conflict searches, and it can be a tedious and arduous task to separate the contents by ownership, especially where the file has a long history and is therefore quite voluminous.
The Cordery Framework
The text most often referred to in the case law is Cordery’s Law relating to Solicitors, 8th ed (London: Butterworths, 1988) (“Cordery“).
The Cordery framework begins with documents predating the retainer, which the lawyer simply holds as agent for the client. Documents created during the retainer fall into four categories:
- those prepared for the client’s benefit and paid for by the client, belong to the client;
- those prepared for the lawyer’s own benefit or protection, not chargeable to the client, belong to the lawyer;
- letters, authorities, and instructions written or given by the client to the lawyer, belong to the lawyer; and
- documents prepared by a third party and received by the lawyer, belong to the client.
The CPC Networks Decision
The decision of the Saskatchewan Court of Appeal in CPC Networks Corp. v McDougall Gauley LLP, 2023 SKCA 90 (“CPC Networks“) offers a recent and thorough examination of file ownership in Canadian law. While the decision is not binding in Ontario, it is persuasive.
- (1) Caution on the “working file” line. The Court held that the familiar proposition that a lawyer’s “working files” simply belong to the lawyer is suspect. The Canadian cases in that line often rest on an incomplete reading of Cordery and reflect older assumptions that sit uneasily with a lawyer’s modern fiduciary obligations.
- (2) Purpose over labels. Categories such as “solicitor’s notes” and “inter-office memoranda” are not, as a class, the lawyer’s property. A note of a witness interview billed to the client belongs to the client; a memo directing where accounts should be sent belongs to the lawyer. The label does not decide the question, and the document’s purpose does.
- (3) Predominant purpose, in favour of the client. Because many documents serve mixed purposes, the predominant purpose controls, and any doubt is resolvedin favour of the client.
- (4) A practical test. Would a new lawyer taking over the file have wanted the document in order to manage the file and advance the client’s interests? If so—particularly where the client paid for the time—it likely belongs to the client.
- (5) Billing and burden. That the client was billed for the time is a significant but not decisive factor, and the burden of proving that a document is the lawyer’s property rests with the lawyer.
Cordery: Accepted Framework in Ontario
It should be noted that Cordery has long been accepted in Ontario. In Aggio v Rosenberg [1981] O.J. No. 2229, Master Sandler adopted the Cordery categories in ordering the delivery of a former client’s file, and in Price v Lambrinos, 2012 ONSC 4856, the court applied the same framework where a lawyer sought to withhold a file over an asserted lien. Both decisions were canvassed in CPC Networks.
Takeaway
The practical message is that most of the file belongs to the client, and the class of documents a lawyer may properly withhold is narrow. A lawyer who withholds anything should be prepared to identify each document and the basis for withholding it with specificity. At the same time, they should appreciate that their obligations to deliver their file in this context can be different from their obligations to produce their file in discovery. Part 2 will turn to this very different setting—where the former client sues the lawyer, and ownership largely falls away.
Thank you for reading and have a wonderful day!
By Jordyn Sanford