The Ethics Committee, a committee of the Council of the Law Society, is tasked with providing guidance to members on their ethical obligations. Members can submit a written enquiry to the Committee through the Representation and Law Reform Department at [email protected]. For detailed guidelines on enquiries to the Ethics Committee, please refer to the Council’s Practice Direction 2 of 2009 which is available at the Legal Ethics section of the Law Society’s website at
www.lawsociety.org.sg.
This article discusses, generally, the duty of a lawyer to release copies of past correspondence to his or her former client and the photocopying and administrative fees chargeable for making available such documents to the former client.
The Ethics Committee (the “Committee”) has omitted from the article facts that the Committee considered not crucial to the ethical obligations of the lawyer in question or to the guidance given.
A member who encounters difficulty in a specific case and needs guidance should write to the Committee for a specific opinion. The Committee and the Law Society are not liable to any member who does or omits to do anything based on this article.
Owners, Keepers
Releasing Copies of Past Correspondence to a Former Client and Applicable Charges
The Ethics Committee (the “Committee”) was informed by a law practice that it had previously acted for a former client in a matter which had already been completed and there were no outstanding fees owed by the client on the matter. The law practice was contacted by the client’s new solicitor, informing that the client wanted copies of all files relating to the client which the client would have a right to access and the director of the client would be entitled to, on the basis that the client had a “clear proprietary claim” over the files. The law practice had asked the client to bear, apart from usual photocopying charges, administrative charges in attending to the client’s request (including time spent to retrieve and review the files and to identify and make copies of the documents requested for) on the basis that these documents formed part of the law practice’s own record for past services rendered and did not amount to “client’s documents”.
The client was not agreeable to the payment of the law practice’s administrative charges. The law practice’s engagement letter with the former client did not expressly provide for the retention/storage/retrieval/destruction of documents and the relevant documents were placed in storage, and had since been retrieved.
The Committee was asked to consider whether documented correspondences and advice previously rendered to a client (as filed in the firm’s files/stored by the firm) amounted to “client’s documents” such that the firm was legally obliged to make them available to the client on request and if so, whether the firm was entitled to impose any charges by way of administrative fees and photocopying charges for making such documents available to the client prior to release.
Ethics Committee’s Guidance
The Committee’s guidance was as follows:
1. With regard to the query on whether documented correspondences and advice previously rendered to a client amounted to “client’s documents” which had to be made available on the client’s request, the law practice should refer to Council’s Practice Direction 1 of 1999 (“PD 1 of 1999”) and the Law Society of England’s Guidance Note on ownership, storage and destruction of documents (“UK Guidance Note”) annexed therein to determine the ownership of a particular document. The UK Guidance Note stated, inter alia, that documents prepared by the law practice for the benefit of the client and which had been paid for by the client, either directly or indirectly, belonged to the client, while documents prepared by the law practice for their own benefit or protection (the preparation of which was not regarded as an item chargeable against the client) belonged to the law practice (see: paras (a) and (b) of the UK Guidance Note). The law practice would be in the best position to determine the ownership of the documents in question with reference to the guidance and examples set out in the UK Guidance Note, taking into account all relevant circumstances.
2. With regard to the query on imposition of photocopying charges and administrative fees, the law practice was entitled to charge a reasonable fee for direct and indirect costs incurred in meeting the request for copies of such documents. Such costs would include a nominal administrative fee, retrieval charges, reasonable return courier charges, reasonable photocopying charges and other reasonable incidental costs incurred in meeting the request for copies of such documents in respect of:
i. documents which belonged to the law practice and which the law practice was not obliged to provide; and
ii. additional copies of documents previously returned to the client upon the termination of the retainer.
3. Insofar as the law practice was returning documents which ought to have been returned to the client upon the termination of the retainer, the law practice should not charge for fees for storage/retrieval, because these documents ought to have been returned to the client in the first place, before the file was closed and sent to the warehouse (see: para 2 of PD 1 of 1999). However, the law practice should still be allowed to charge reasonable return courier/transport charges (if returning the documents in hard copy), as the law practice would presumably have been entitled to charge for the same if they had returned the documents upon termination of the retainer then.
► Ethics Committee
The Law Society of Singapore