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Appendix 3 - Dealing With File Contents When Closing the File

The following are some suggestions with respect to dealing with the contents of the file when preparing a file for closing.1
  
Document Client Lawyer
Retainer Documents [Retainer Agreement, Client Instructions, Conflict of Interest, Acknowledgments, Initial Letter to the Client]  
Previously given to the client
 
Keep
Client Documents Existing Prior to the Retainer  
Return
 
Lawyer to determine whether to keep
a copy in accordance with the law firm’s File Retention Policy.
Documents Prepared by the Lawyer for the Client
[e.g. agreements, leases, charges, transfers, etc.
 
Return
 
Lawyer should keep a copy unless the document can be retrieved from another source. Even where the document can be obtained from another source, the lawyer may wish to retain a copy if it is likely that the
document will be required in the future.
Court Documents such as pleadings, briefs, legal memoranda, pretrial notes, document books etc Provide the client with these documents or access to these documents in accordance with the
caselaw
Lawyer should determine whether to keep a copy in accordance with the law firm’s File Retention Policy.
Drafts of Documents Provide the client with these documents or access to these documents in accordance with
law
 
Lawyer should keep a copy if the document confirms client instructions and if the lawyer reasonably believes that this might be an issue in the future.
Documents of the Opposing Party
[Pleadings, briefs, document books etc.]
Provide the client with these documents or access to these documents in accordance with
law
 
Lawyer should determine whether to keep a copy in accordance with the law firm’s File Retention Policy.
 
Letters from Third Parties
 
Provide the client with these documents or access to these documents in accordance with
law
 
Lawyer should keep a copy.
 
Letters to Third Parties
 
Provide the client with these documents or access to these documents in accordance with
law
 
Lawyer should keep a copy.
 
Caselaw
 
Provide the client with these documents or access to these documents in accordance with
law
 
Lawyer should keep a list of the cases.
 
Discovery and Trial Transcripts
 
Provide the client with these documents or access to these documents in accordance with
law
 
Lawyer should determine whether to keep a copy in accordance with the law firm’s File Retention Policy.
 
Experts’ Reports
 
Provide the client with these documents or access to these documents in accordance with
law
 
Lawyer should determine whether to keep a copy in accordance with the law firm’s File Retention Policy
 
Client’s Property
[e.g. jewellery, artwork, securities]
 
Return
 
Lawyer should retain records as required by By-law 9.
 
Corporate Minute Books and Seal
 
Return unless otherwise agreed with the client
 
Lawyer should determine whether to keep a copy in accordance with the law firm’s File Retention Policy
 
Last Wills and Testaments
 
Return unless otherwise agreed with the client
 
Lawyer should keep a copy of the original will. The lawyer should consider keeping copies of drafts of the will and previous wills as evidence of the client’s instructions.
 
Powers of Attorney
 
Return unless otherwise agreed with the client
 
Lawyer should keep a copy of the original Power of Attorney. The lawyer should consider keeping as evidence of client instructions drafts of documents and previous powers of attorney.
 
Notes to the File, Inter-office Memoranda, Tape-recordings or notes of conversations
The lawyer should keep these if they document client instructions.  
 
 
Time Entries/Dockets
   
Keep
 
Law Firm’s Accounting Records Relating to Client Matter
   
Keep
1 When a lawyer transfers a file upon discharge or withdrawal from representation additional considerations apply. In this regard, subject to the lawyer’s right to a lien, the lawyer must deliver to or to the order of the client all papers and property to which the client is entitled and, subject to any applicable trust conditions, must give the client all information that may be required in connection with the case or matter. In addition the lawyer must cooperate with the successor lawyer or paralegal so as to minimize expense and avoid prejudice to the client. Section 3.7 of the Rules of Professional Conduct sets out the lawyer’s obligations in this regard.