Unsatisfactory conduct. Release of files to former client
This is a summary of a decision by a Lawyers Standards Committee under the Lawyers and Conveyancers Act 2006. This summary was published in LawTalk 750.
A lawyer’s actions amounted to unsatisfactory conduct when he had refused to provide his legally aided client with her file unless either the client or the Legal Services Agency paid for the cost of copying it. The Standards Committee ordered the lawyer to apologise to the client and to provide her with her file.
Rule 4.4.1 of the Rules of Conduct and Client Care states that, when changing lawyers, a client has the right to uplift their file from their former lawyer. In this case, the lawyer argued that the client’s right to the file was subject to (a) the audit provisions in the Legal Services Act 2000 (ss77-79) which require legal aid lawyers to give the auditor access to all documents under their control, and also (b) his contractual obligation to the Legal Services Agency (LSA) to retain files for three years. The lawyer said he had requested funding from the LSA to cover the costs of copying the file but the LSA had refused.
The Standards Committee rejected the lawyer’s argument.
There was no provision in either the Legal Services Act or any regulations made under it that overrode a client’s right to their file –this would have required an express provision, as foreshadowed by s65(3) of the Act. The lawyer’s contractual obligation to retain work records for audit purposes also could not interfere with the client’s right to her file. That obligation did not require the lawyer to retain original documents, and there was no cogent reason why the costs of copying the file to retain it for audit purposes should be passed on to the client.
The Standards Committee found that the lawyer had clearly breached Rule 4.4.1 and that this amounted to unsatisfactory conduct.
In deciding the appropriate penalty, the Standards Committee took into account that the issue had not been decided before. It ordered the lawyer to apologise to the client and to make her file available to her at the lawyer’s own expense. It decided a fine would be inappropriate. The lawyer was, however, ordered to pay $250 in costs.