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File Notes: Part 2

The NSW Supreme Court Recently Considered Whether A Solicitor Needed To Hand Over File Notes To A Client: Touma V Maroulis [2021] NSWSC 34.

The Court Referred To The General Principles Of The Solicitor Client Relationship As Being One Of Agency.  That Means Any Documents Generated In The Course Of A Solicitor’s Dealing With The Court, With Other Parties And When Retaining Or Communicating With Third Parties, As Agent For The Client Are Held By The Solicitor As Agent Because They Belong To The Client.

However, The Court Also Acknowledged That Not All Documents That Come Into The Hands Of A Solicitor For The Purpose Of Conducting Litigation On The Client’s Behalf Are Necessarily Documents That Belong To The Client. Examples Of Those Documents Would Be File Notes Created For Internal Purposes Such As A Discussion Between A Supervisor And The Solicitor With Conduct Of A Matter, Provided Those Notes Did Not Progress The Matter, And That The Client Was Not Charged. His Honour, Parker J At Paragraphs [355] – [356] Indicated That If A Client Is Charged For The Preparation Of Any Document, Including A File Note, Then That File Belongs To A Client.

Liability Limited By A Scheme Approved Under Professional Standards Legislation

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