Guide to delivering up documents

Failing to protect a client's privilege when producing documents, or handing over a file without proper authority, are recurring sources of claims and complaints.

The steps are straightforward, but time pressure and unfamiliarity with the correct process lead practitioners to cut corners, often without realising the consequences until a complaint arrives.

This article sets out the required steps for three common scenarios and provides example wording practitioners can adapt immediately.

A practitioner who fails to claim privilege when producing documents under subpoena may permanently waive the client's privilege, exposing both the client and the practitioner to serious harm.

1. On the day the subpoena is received, confirm it meets applicable procedural requirements, then take the following steps:
2. Review the file to identify every document caught by the subpoena.
3. Write to the subpoenaing party confirming receipt and stating that the file will be produced to the court with a claim for privilege. Use the example wording below.
4. Write to the client explaining that a subpoena has been received, that the file will be produced to the court, and that privilege has been claimed on their behalf. If the client asks questions, confirm that compliance with the subpoena is mandatory.
5. Diarise the compliance deadline immediately and seek an extension of time if necessary.
6. Seal the file and produce it to the court as specified in the subpoena (for example, to the Prothonotary's office or the Registrar's office), together with a cover letter in the terms set out below.

Practitioners must follow this process even if they cannot contact the client. Under no circumstances should practitioners copy the file and send it directly to the subpoenaing party.

A practitioner cannot refuse to comply with a subpoena on the grounds of confidentiality or a lien over the file.

Example wording: letter to the subpoenaing party

"We confirm receipt of the subpoena dated [date]. The documents called for will be produced to the court. Privilege is not waived. We object to the documents being made available for inspection by any party not entitled to claim privilege unless ordered by the court or privilege is waived by the person entitled to claim it."

Example wording: cover letter to the court

"The enclosed documents are produced pursuant to the subpoena dated [date]. Privilege is not waived. We object to the documents being made available to the parties for inspection. We request that the documents be kept intact and made available only to the presiding judge until privilege is waived by the person entitled to claim it or the court orders otherwise."

Releasing a file without addressing lien rights can leave a practitioner without security for unpaid costs. Releasing documents subject to shared privilege without the consent of all clients can breach confidentiality obligations owed to those other clients.

When the request is received, determine two threshold questions:

1. Who terminated the retainer?

• If the client terminated, the practitioner may claim a possessory lien, meaning the practitioner may retain the file until outstanding costs are paid.

• If the practitioner discharged the client, the practitioner must hand over the file to the new solicitor. The new solicitor holds the file subject to the former practitioner's lien and provides reasonable security for payment of outstanding costs.

2. Did the practitioner act for more than one party in the matter?

• If yes, privilege in the documents belongs to all parties. Before producing any documents, write to each other client seeking their consent to release the documents to the departing client's new solicitor.

Rules 14 and 15 of the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (Conduct Rules) set out the obligations that apply when a practitioner is required to deliver documents to a former client or successor solicitor.

Disclosing confidential information to a non-client's solicitor without client authority can found a negligence claim and a disciplinary complaint.

On receipt of the request, take the following steps:

1. Acknowledge receipt only. Confirm the request has been received and that the practitioner is seeking instructions. Do not disclose any substantive information at this stage.

1. Contact the client or former client to explain the request and seek instructions on whether to release any documents or information.

1. Act only on instructions. Do not release any documents or information without the client's or former client's express authority.

Rule 9 of the Conduct Rules sets out the limited circumstances in which information confidential to a client may be disclosed. These include where:

• the client expressly or impliedly authorises disclosure

• the practitioner is permitted or compelled by law

• the practitioner discloses the information in a confidential setting, for the sole purpose of obtaining advice in connection with the practitioner’s legal or ethical obligations

• disclosure is necessary for the sole purpose of avoiding the probable commission of a serious criminal offence

• disclosure is for the purpose of preventing imminent serious physical harm to the client or to another person

• the information is disclosed to the insurer of the practitioner, law practice or associated entity.

Unless one of these exceptions clearly applies, the default position is that nothing is disclosed.

For requests to hand over will instruction files based on the English case of Larke v Nugus see LPLC’s article Requests for information about validity of will.

Save the example wording from Scenario 1 as a precedent in the firm's document management system so it is available the next time a subpoena is received. Add the checklist above to the firm's file management procedures so that any practitioner handling a document production request can follow the correct steps without delay.

For further guidance, contact the LPLC on (03) 9672 3800.