Lawcovernotes March 2019

5. It’s not uncommon for a client or a former client to request their file, however solicitors are often unaware of what documentation should be handed over. Lawcover frequently receives requests for guidance on this point and it’s important that solicitors understand their obligations when such a request is made. The general rule is that file notes are and remain the property of the solicitor and the client is, therefore, not entitled to them. This notwithstanding, Lawcover may suggest that the solicitor consider whether the file notes might be helpful if there is doubt establishing matters such as instructions provided or advice given. Similarly in the absence of formal letters of advice it may help to fill an apparent gap in the file. Making any file notes available early on may rebut an inference of breach of duty and in turn forestall a claim. In a recent claim a conversation was recorded in file note form between a solicitor and their client. The conversation detailed the benefits and costs of lodging a caveat on title after exchange as protection against the insolvency of a developer in an off the plan purchase. In another claim the solicitor recorded oral instructions to settle proceedings on a compromised basis in file note form. Both claims involved an allegation of file note fabrication. Both allegations rested solely upon the fact that the critical file notes were not included in the file when it was handed over prior to commencement of proceedings. Although there was no evidence that either of the file notes had been fabricated, such allegations add a layer of stress and complexity to the defence of a claim. There is also the risk that a Court may make an unfavourable finding against a defendant solicitor and tip the balance in favour of settlement of an otherwise defensible claim. The early provision of file notes in both claims may have minimised any allegation that a favourable file note not produced on file handover (but at a later date after a claim is made and/or proceedings filed) has been fabricated. When considering whether or not to release file notes, solicitors should weigh up the advantages and disadvantages including the fact that they will be discoverable if proceedings are commenced. If you decide not to release the file notes, consider making their retention clear in the hand over letter, preferably identifying them by date and general subject matter. This may help to rebut any subsequent allegation of fabrication. Alternatively, consider seeking IT advice to electronically preserve a record of all relevant dates for production if later challenged. Jennifer O’Brien Claims Solicitor Responding to client file requests