Clients may request a copy of their file. Reasons vary from no issues whatsoever (you may be retiring, not be able to continue with the retainer or the subject of the retainer has changed requiring different expertise) to issues with your handling (client is unhappy, is not getting the desired outcome, wants a different lawyer) to your client not following your advice.
Regardless of the reason, when the file has to be returned, most of it is considered the client’s property and they are entitled to it.
Most of the file, but not all, at least not in Nova Scotia.
First though, you should always keep a complete copy of what you provide to the client or their new counsel. While the parting of ways may have been amicable, once another lawyer reviews the work done, there is a possibility that they see something you may have missed or the client’s dissatisfaction alone turns into a claim against you in which case it is important for you to be able to provide a copy of your file to us so any claim can be thoroughly reviewed and addressed.
But back to the “most of the file” part. Not all that is in the file is client property. Lawyers should review the case of A.S. v. Crowe, 1986 CanLii 2002 (NSSC) which discusses what is considered client property and has to be provided to the client, and what can be considered solicitor work product which can be, but is not mandated to be, provided to the client. From Crowe:
I find that the working notes or memos in this instance prepared by the defendant solicitor are in the category of solicitor property and not available to the plaintiff.
This was also briefly discussed in Nova Scotia (Attorney General) v. Sun & Alliance Insurance Company of Canada, 2005 NSCA 34 , paragraph 20, where the Court of Appeal noted Crowe and commented that file ownership depends on the particular engagement and terms of the engagement.
As far as we know, Crowe remains good law in this province.
If providing a copy of your file to the client or others, we recommend that you first review the file with the principles from Crowe in mind, and keep a complete copy of what you are providing.