Conduct and service

When can I charge?Judging by referrals to the Office for the Supervision of Solicitors (OSS) and periodic debate in the legal press, many solicitors are confused about whether, and in what circumstances, they can charge for the delivery of stored papers to a client.

The problem largely stems from misinterpretation of principle 12.13 of the Guide to the Professional Conduct of Solicitors (8th Edition), and particularly note 4 to the principle.Until the costs are paid, a solicitor is entitled to exercise a lien on any papers that he holds.

However, once the bill is paid the papers, except those regarded as belonging to the solicitor, belong to the client.

Examples of documents that will belong to the firm are copies of letters to and from the client, inter-office memoranda and time sheets.Confusion arises when the client requests delivery of his papers to himself or a third party.Principle 12.13 states that, matters of lien aside, the solicitor should, once a retainer is terminated, deliver to the client all papers to which he is entitled, or hold them to the client's order.

In practice it is usually the latter that happens.But what happens if the client, later on, requests the file? Note 4 states that no charge should be made for removing it from storage - even if the firm has its dead files stored commercially and has to pay for their retrieval.

However, note 4 goes on to say the solicitor may make a reasonable charge for retrieving documents from the file at the request of the client.

This provision causes the problem; some firms believe they are entitled to charge the client for separating their papers from the client's before handing over the file.It is vital to appreciate that the important words are 'at the request of the client'.

A distinction must be made between a client requesting the file, and the firm wanting to extract its own papers before sending it to the client, and the client merely requesting certain papers belonging to him.

In the first scenario, any sorting of the papers is effectively for the benefit of the firm and it is not permissible to charge for the time involved.However, in the second, what is being done is at the specific request, and for the benefit of, the client and reasonable charge may be made - not forgetting of course, that before doing the work, the client should be told what the charge will be.l Every case before the adjudication panel is decided on its individual facts.

These case studies are for illustration only and should not be treated as precedents.