Guide to Retention and Destruction of Closed Client Files, For Lawyers - Appendix 2

File Documents

The following cases and materials have dealt with the issue of document ownership and may be of assistance to lawyers in determining who owns the documents in the file:

Aggio v. Rosenberg, 24 C.P.C. 7, 1981

Alexandra Marks,ed., Corderyon Solicitors, 9th ed. (London: Lexis Nexis Butterworths, 1995) at 4/661.

McInerney v. Macdonald, [1992] 2 S.C.R. 138

In Aggio v. Rosenberg the plaintiff changed lawyers prior to trial. A direction was sent to the former lawyers requesting that they deliver the contents of their file to the new lawyer. The former lawyers did not claim a solicitor's lien, but took the position that the plaintiff was not entitled to correspondence to or from the law firm, memoranda of law and copies of cases in the file. The court dealt with the issue of who has authority over documents upon the termination of a retainer, Master Sandler states at page 4:

"As to what the law in Ontario is, I adopt the law as set out in Cordery [Cordery, Law Relating to Solicitors (6th ed.)] as follows:

Documents in existence before the retainer commences and sent to the solicitor by the client or by a third party during the currency of the retainer present no difficulty since their ownership must be readily apparent. The solicitor holds them as agent for and on behalf of the client or third party, and on termination of the retainer must dispose of them (subject to any lien he may have for unpaid costs) as the client or third party may direct.

  1. Documents prepared by the solicitor for the benefit of the client and which may be said to have been paid for by the client, belong to the client.
  2. Documents prepared by the solicitor for his own benefit as protection, the preparation of which is not regarded as an item chargeable against the client, belong to the solicitor.
  3. Documents sent by the client to the solicitor during the course of the retainer, the property in which was intended at the date of dispatch to pass from the client to the solicitor, e.g., letters, belong to the solicitor.
  4. Documents prepared by a third party during the course of the retainer and sent to the solicitor (other than at the solicitor's expense), e.g. letters belong to the client.

The Supreme Court of Canada in McInerney v. Macdonald in dealing with the ownership of medical records in a physician's file, takes another approach. In McInerney v. Macdonald, a patient requested copies of the contents of her medical file from her doctor. The doctor delivered copies of the records that she had prepared herself, but refused to produce copies of reports and records that she had received from other doctors who had treated the patient. She took the position that those records were the property of those other doctors.

 The court held that the relationship between the doctor and patient is a fiduciary relationship. Information revealed to the doctor in his or her professional capacity is held in a manner somewhat similar to a trust. While the doctor owns the actual medical records, the information is to be used by the doctor for the benefit of the patient.

Generally a patient is entitled to reasonable access to examine and copy all information in the patient's medical file which the doctor considered in administering advice or treatment provided that the patient pays a legitimate fee for the preparation and reproduction of the information.

 La Forest J. in delivering the judgment of the Supreme Court of Canada states at page 9:

"The fiduciary duty to provide access to medical records is ultimately grounded in the nature of the patient's interest in his or her records. As discussed earlier, information about oneself revealed to a doctor acting in a professional capacity remains in a fundamental sense, one's own. The doctor's position is one of trust and confidence. The information conveyed is held in a fashion somewhat akin to a trust. While the doctor is the owner of the actual record, the information is to be used by the physician for the benefit of the patient. The confiding of the information to the physician for medical purposes gives rise to an expectation that the patient's interest in and control of the information will continue.

In addition at page 13. he states:

"In the absence of regulatory regulation, the patient is entitled, upon request, to inspect and copy all information in the patient's medical file which the physician considered in administering advice or treatment. Considering the equitable base of the patient's entitlement, this general rule of access is subject to the superintending jurisdiction of the court. The onus is on the physician to justify a denial of access".

The following are some examples of documents in a client file and how a lawyer should deal with these documents: [1]


Client's Documents

Subject to the right of the lawyer in appropriate circumstances to claim a solicitor's lien, a client is entitled to:

  • Documents existing before the lawyer was retained;
  • Originals of documents prepared by the lawyer for the client pursuant to the retainer such as a last will and testament, power of attorney, agreement, transfer and charge;
  • Personal property of the client such as corporate seals.

Other Documents

Subject to the right of the lawyer in appropriate circumstances to claim a solicitor's lien, a lawyer in accordance with the law should either return the following documents to the client or give the client reasonable access to these documents:

  • Copies of letters received from third parties;
  • Copy of letters sent by the lawyer to third parties;
  • Pleadings;
  • Cases;
  • Briefs;
  • Memoranda of law;
  • Pretrial Memoranda;
  • Draft documents prepared by the lawyer for the client;Document books;
  • Vouchers and receipts for disbursements made on behalf of the client;
  • Experts' reports.
  • Discovery and trial transcripts.

Lawyer's Documents

The lawyer is entitled to the following documents:

  • Original correspondence from the client including instructions from the client;
  • Copies of correspondence sent to the client;
  • Working notes, summaries or evidence and submissions to the court;
  • Tape recordings of conversations other than with witnesses;
  • Inter-office memoranda;
  • Time entries or dockets;
  • Accounting records and parts thereof that relate to the client matter;
  • Notes and other documents prepared for the lawyer's own benefit or protection and at the lawyer's own expense.
 
 

1 When a lawyer transfers a file upon discharge or withdrawal from representation additional considerations apply. In this regard, subject to the lawyer's right to a lien, the lawyer must deliver to or to the order of the client all papers and property to which the client is entitled and, subject to any applicable trust conditions, must give the client all information that may be required in connection with the case or matter. In addition, the lawyer must cooperate with the successor lawyer or paralegal so as to minimize expense and avoid prejudice to the client. Section 3.7 of the Rules of Professional Conduct sets out the lawyer's obligations in this regard.