Client request for an electronic file in editable form
By Donna Cooper.
As can often happen in the busy cut and thrust of legal practice, clients may choose to change solicitors mid-matter. If a client asks for the file in an editable format, do you have to provide it in the format requested?
Suppose your client of 6 months has just advised you that he has decided to retain a different firm of solicitors. You have drafted many documents for him over the past 6 months and have provided him with electronic copies of these documents over email. He has paid your most recent invoice and wishes to provide his new solicitors with his file. In the course of terminating your engagement, your client has asked you to resend all the previous electronic documents in an editable format (for instance in ‘Word’ rather than ‘PDF’.) Do you have an ethical obligation to provide an editable version of these documents?
What do the Australian Solicitors’ Conduct Rules (‘ASCR’)provide?
Rule 14 of the ASCR (1) codifies our obligations regarding the provision of client documents to the client upon completion or termination of the law firm’s engagement, but there is some discretion when it comes to the format of the handover. In particular, solicitors have an obligation to provide client documents to the client as soon as reasonably possible when requested to do so, subject only to the existence of an effective lien over the documents for unpaid fees.(2)
But in what format should the documents be provided? Electronic or hard copy? Also, is the client entitled to a second set of documents if they have already received the same documents during the course of the engagement?
Who owns which document on a client matter file?
The documents on the file will be a mixture of client documents, and the solicitor’s own documents. The case of Wentworth v de Montford (1988) 15 NSWLR 348, 355-6 (3)sets out the categories for these documents in detail and is a very helpful guide. Some 28 years on, the Victorian Court of Appeal reaffirmed its reasoning in the decision of Champion v Rohrt (4) and both decisions are worth reviewing, as is an article written by my colleague Michael Dolan titled ‘I want my file please’ (5). Also helpful is the LIV’s File Ownership Retention and Destruction Guidelines (6) which state:
‘Two relevant factors to be considered in relation to who is entitled to a document are:
- Whether the client was charged for the creation of the document; and
- Whether the solicitor created the document primarily for the client’s benefit or for the solicitor’s own benefit and use.’
Has the client been given the document already in either hard copy or electronic form?
There is no obligation to provide a client with more than one copy of a client document unless you have previously agreed to do this in your opening engagement letter or via some other agreement.
Was there any explicit agreement or expectation that client documents would be provided in a particular form?
Generally speaking, if a document has only ever existed in an electronic form, then there is no need to provide a hard copy (paper) version of it. For instance, if you have a practice of never printing emails, and instead you simply file them into an electronic file, then it is considered acceptable to provide these to the client in the same format in which you held them, ie electronic. It would be wise to advise the client of this in your engagement letter. In fact, the LIV’s File Ownership Retention and Destruction Guidelines goes so far as to state:
‘In the case of electronic documents (including emails and messages), solicitors should retain them in their original (native) format, as that format is likely to include other potentially relevant information about the document (metadata) that is not immediately apparent. So, for example, solicitors should not merely print out an email and store that hard copy, as the hard copy is a substantially inferior record of the original email, given the loss of metadata (about how and when it was delivered etc) in the printed version. The metadata is as much a part of the electronic document (and thus potentially owned by the client) as its ordinary text. In addition, to the extent that a solicitor is obliged by law to retain an “electronic communication” (such as an email), section 11(4) of the Electronic Transactions Act 2000 (Vic) obliges solicitors to retain it in a manner that maintains its integrity.’
Will it be expensive or inconvenient to provide the client with another copy?
Usually it will be relatively quick and economical to provide the client with a second electronic copy of their documents (as compared with the hours lost and cost involved in standing at the photocopier to make paper copies.) It would also be a gesture of goodwill to an outgoing client to provide them with a second electronic set at no charge if they so request it.
Should you ever provide a client with an ‘editable’ electronic version of a document?
In our opinion, it is never wise to provide a client with a version of an electronic document which can be edited or otherwise manipulated by the client. This will of course depend on the client and type of matter. We also acknowledge that there are some software products available which make it easy for a client to convert a PDF into a word document.
Should you delete client documents after 7 years?
Take care when reading rule 14 of the Australian Solicitors’ Conduct Rules regarding the destruction of client documents. The rule as presently drafted does not authorise destruction of documents that are the client’s property in which you as the solicitor hold that client property only as a bailee. (7) It is a good idea to ensure that you include a file destruction clause in your engagement letter. Having said that, there will be some client matter documents on the file that should never be destroyed (eg. documents on a Will file and the like.) This can be a tricky area to navigate and it would be wise to obtain professional assistance when faced with it.
- Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015:https://www.legislation.nsw.gov.au/regulations/2015-244.pdf
- G E Dal Pont, Lawyers’ Professional Responsibility (Lawbook Co, 6th ed, 2017) 521.
- Wentworth v de Montford (1988) 15 NSWLR 348, 355-6.
- Champion v Rohrt (2016) VSCA 215 .
- M Dolan, ‘I want my file please’, (2017) Law Institute Journal.
- Law Institute of Victoria, ‘File Ownership Retention and Destruction Guidelines’ (2017).https://www.liv.asn.au/Professional-Practice/Ethics/Ethics-Guidelines
- Queensland Law Society, ‘The Australian Solicitors Conduct Rules 2012 in Practice: A Commentary for Australian Legal Practitioners’ (2014) 62.