Question of ethics archive

Important: The guidance below was written and issued before the introduction of the SRA Handbook on 6 October 2011, and may refer to regulatory material that is no longer in effect. Although it may still be relevant, this guidance has not been rewritten in light of the wide-ranging regulatory changes implemented on 6 October 2011. Accordingly, it has been archived.

August 2010

 Note: References to a 'rule' or to the 'Code' means the rules in The Solicitors' Code of Conduct (2007)

Client requesting file

Q. I have been instructed by a client in connection with a negligence claim against his former solicitors. With his authority, I wrote to the firm asking for the file to enable me to advise him more fully. However, the firm are refusing to release it on the grounds that if a claim for negligence is made, they will need the file in order for their insurers to deal with the matter. They have offered access to the file and/or to photocopy any documents I require, but obviously this is not satisfactory. Can they do this?

 No. The client is entitled to those papers on the file which belong to him and unless the firm is entitled to exercise a lien in respect of outstanding costs, they must hand those papers to the client (see rule 2, guidance note 11). In view of the potential claim, the firm would certainly be advised to keep a copy of the file, but bearing in mind that this is for their benefit, any photocopying must be done at their expense.

Charging to retrieve file from storage

Q. I act for a client in connection with a boundary dispute. The client, who has previously had problems with the same neighbour over the boundary, contacted his previous solicitor to ask for the file. However, the file is in a storage facility and the firm will not release it until the client pays an administration fee. Are they entitled to do this?

The firm may charge a fee if it reserved the right to do so in their terms of business at the outset of the retainer or this was agreed with the client before the file was placed in storage. The fee itself must be reasonable, reflecting the time involved in retrieving the file and (if relevant) any sum you are required to pay to a storage facility.

If no such charge was agreed, then there is no contractual basis on which the firm can make such a charge, although the firm would be entitled to charge for the cost of delivering the file to the client, if the client does not collect it. This would preclude the firm from charging a set fee.

The position is different if a client asks you to send a particular document on the file, rather than the file itself. In these circumstances, a firm is entitled to charge for the time involved, since this is chargeable work undertaken on the former client's instructions. However, bearing in mind your duty not to take unfair advantage of anyone for your own benefit (see rule 10.01 of the Code), you should explain what your charges (or the basis of charging) would be for doing the work and that it may be more cost effective for the client to take delivery of the whole file.

Closing down your practice

Q. In view of the press coverage about the problems which firms are likely to experience in renewing their indemnity policies this year, I have decided to bring forward my retirement date and will be closing my practice at the end of September. What are the SRA's requirements in this respect?

Please see Closing down your practice which provides guidance in respect of the various regulatory points you need to consider.