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94-02 : Transfer of Open Files to New Lawyer

The Society receives frequent inquiries from members of the profession concerning their obligations and rights with respect to "ownership" of the contents of open client files when a matter is being transferred to new counsel as a result of the client discharging the lawyer or the lawyer withdrawing. Members are directed to the provisions of Chapter 12 of the Manitoba Code of Professional Conduct (1992) for general guidance as to the proper ethical conduct with respect to transfer of an ongoing matter to a new lawyer. In particular, members should note the duties and rights of the lawyer outlined in Commentaries 8 through 12 of Chapter 12.

The Society wishes to elaborate upon the respective rights of the discharged lawyer and the client to the contents of the file, as this appears to be a matter of dispute in many cases. The Society is of the view that the client or the client's new lawyer is entitled to receive the original of all correspondence, pleadings, written legal memoranda, medical and other expert reports, and other such documents. The lawyer who has withdrawn or been discharged is entitled, if the lawyer so wishes, to keep only his or her notes of meetings, memoranda to file, or other such notes intended to be for the lawyer's own use. The right of the client to obtain the file with the documents noted above is of course subject to the discharged lawyer's right to assert a lien for unpaid fees and/or disbursements and the limitations on the lawyer's entitlement to claim such a lien (see Commentaries 11 through 12 of Chapter 12 of the Code).

A lawyer who has been discharged or who has withdrawn from the case may wish to keep a copy of the file for his or her own benefit. For example, the lawyer may find a copy of the file beneficial in the event of a future complaint of misconduct or an allegation of professional negligence. It is the view of the committee that if a lawyer wishes to make a copy of the file before transferring it, this should be done at the lawyer's own expense as it is solely for the lawyer's benefit, and it is improper to charge one's former client for the photocopying costs. Similarly, it is improper to impose a trust condition on the client's new lawyer purporting to require payment of such photocopying charges or to require the file be made available on request by the former lawyer.

It should be emphasized that the above guidelines are intended to apply only to open client files concerning uncompleted matters which are being transferred to a new lawyer. Entirely different considerations may apply in the case of closed client files, as the contents of closed files are presumed to be the property of the lawyer subject to certain requirements [see Bank of Nova Scotia v. Imperial Developments (1987) 46 DLR (4th) 190 (Man.C.A.) for guidance concerning closed files].

(January 1994)

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