If you do not already have an agreement with your client about who owns documents, this guidance can help.
Whether your firm owns a document depends on your role when the document was created, either acting as:
- a professional adviser, or
- the client’s agent
Acting as a professional adviser
If you were acting as a professional adviser, ownership of the documents depends on the purpose of this relationship. If one of the purposes of the relationship was to create a document, the document will usually belong to the client.
Acting as a client’s agent
You act as the client’s agent if you send or receive correspondence for them. This correspondence belongs to the client in most cases.
Types of document
Usually the client owns documents:
- they sent to your firm, except where ownership was intended to pass to your firm
- sent or received by your firm acting as the agent of the client
- produced when you were acting as a professional adviser to the client, and one of the purposes of that relationship was to create the document. Examples are agreements or written representations
- prepared by someone else, including the client's other advisers, during their relationship with you, and paid for by the client. For example, opinions of counsel and experts' reports
Usually your firm owns:
- documents prepared for your firm's own benefit or protection
- documents prepared to help your firm do its job, for example file copies of letters written to the client, drafts and working papers
- internal communications created during the retainer
- communications written by the client to your firm
- accounting records, including vouchers and instructions
Documents include hard copy and electronic documents.
You may provide a copy of a document that you own to a client if they make a reasonable request. For example, they may have mislaid a key document and be willing to pay a reasonable charge for a copy.
When more than one client owns a document
Think carefully about situations where more than one client has an interest in a document.
- the SRA’s guidance on confidentiality of client information
- which documents in a file belong to which client
- any legal obligations around disclosure, for example under the GDPR
- how to establish consent by both parties if there is a need to share a document
You may own a document that would normally be owned by a client if you can exercise a lien because of unpaid fees.
You may also have to share a document if you are asked to give access to someone’s personal data contained in a client's file as part of a subject access request made under Articles 12 and 15 of the GDPR. You can extract this information and there is no need to provide the full document. The request must also meet certain conditions.
Who owns the file? – a practice note that gives guidance on which parts of the file you own and which parts the client owns
Leicestershire CC v Michael Faraday & Partners  2 KB 205
Chantrey Martin v Martin  2 QB 286 and Gomba Holdings v Minories Finance  BCLC 115