What are they? Who owns them? Why are they controversial?
File notes are records that capture the essence of what has been done or said at a particular time. They may record a) the work completed by a professional; b) the key elements of advice given during conferences; or, c) map out a thought process about a particular issue.
A file note would also identify the date, the matter to which it relates, the people involved, and the length of the meeting.
A file note is usually kept on the client file however, depending on the circumstances, may not belong to the client.
Who owns the file notes?
As a rule of thumb, the following applies:
- The client owns the file note if:
- It was prepared for the benefit of the client, for instance, it recorded conversations with third parties, records of court attendances, and anything else done for the benefit of the client.
- The file note would be owned by the lawyer where:
- The file note was prepared or created for the lawyer’s own benefit, protection, or records and the time taken to prepare it was not charged to that client.
How long should a lawyer keep a file note?
As with all client documents, the solicitors Conduct Rules suggest a period of 7 years to retain file notes. However, that period, might be longer if:
- The particular type of matter had a long statutory limitation period.
- There may be tax implications for the client or the lawyer.
- Where the age of the client is a factor, for instance in relation to a minor, the 7 year period would only start to run from the 18th birthday.
It would be normal practice for the original file to be returned to the client. A copy may be kept by the professional however, photocopying charges for that purpose cannot be passed onto the client.
Where the client requests that a file is retrieved from storage and/or copies of documents made, then the professional may charge for such retrieval and copying provided:
- Those charges are disclosed to the client in advanced; and
- There should be no element of profit.
Lien – When can the file be retained
A professional may refuse to provide an original file to a client in certain circumstances. An example would be where a bill has been unpaid and the professional claims a lien over that file pending payment of that bill. There are numerous exceptions to this principle but as a general rule, a professional is entitled to hang on to a file until the bill has been paid.
The courts have recently considered some of the issues above and those decisions are discussed further in “File Notes: Part 2” and “File Notes: Part 3”.