If a client asks the current firm to transfer the file to a new firm or back to the client (assume no debtors or cost dispute), how should the file be provided (time/cost/form)?
Rule 14 requires a solicitor to forward all client documents in original form to the client or their solicitors unless there is an effective lien.

Files consist of both client documents and solicitor documents. The client is only entitled to the former, although a solicitor may choose to provide the entire file. As a general rule, it is a client document if it is for the benefit of the client or they have been charged for it. Useful cases on the distinction include Wentworth v de Montfort (1988) 15 NSWLR 348 and Alexiou v Alexandra White & Ors t/as HWL Ebsworth Lawyers [2021] NSWSC 485.

A solicitor might consider clearly marking comments/documents made for their own purposes, to ensure that these can be easily separated or redacted, if the solicitor chooses not to provide them to the client.

A current firm (sender) may have maintained a paper and/or electronic file. The new firm or client (recipient) is entitled to have originals (whether paper and/or electronic) available for pick up within a reasonable time of a request, or if agreed sent at the cost of the sender or recipient.

If the original documents are provided, the sender has complied with their obligation even if the recipient IT does not support the electronic file formats. The storage and file retrieval costs can be charged if the client has agreed, which is best dealt with in the cost disclosure, and should not contain any profit.

If the parties agree for non-originals to be provided, for example, an electronic copy of the paper originals, the parties may agree if the sender or recipient may bear the time and/or disbursement cost to provide the file in the non-original form.

The recipient cannot otherwise be charged for providing the file, unless requesting the same file (or part of the file) on a subsequent occasion, after the sender has already complied with the above. In that case any voluntary subsequent provision of the file (or part of the file) can be on agreed terms.

*Please refer to the other FAQs and also this fact sheet for information on unpaid fees and what documents constitute the file.