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Fined for not handing over a file Charles Mabbett
19 May 2015

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A lawyer has been fined $7500 for failing to release a file to a client’s new lawyer. The case, reported in the Law Society magazine Law Talk, is relevant to an issue that we’ve blogged about before because clients’ rights to access information held by their lawyers is also covered by the Privacy Act.

While some lawyers might still believe it is their right to retain a client’s documents – solicitor’s lien - until a bill is paid, the law says otherwise.

Principle 6 of the Act says if an agency holds personal information about an individual, and that individual (or someone acting as their agent) requests it, you have a legal obligation to give them that information.

There are, of course, exceptions and you can find out more about them here. But if none of those reasons to refuse a request apply, an agency (or in this case, the chastised lawyer identified as D) has up to 20 working days to comply.

Lawyer D was fined because she failed to release her client’s file and then failed to comply with a Lawyers Complaints Service (LCS) standards committee order to do so. This was after the client lodged a complaint to the LCS over the lawyer’s refusal to comply with the request.

The lawyer also compounded her situation by not providing a written explanation for her refusal, and later did not respond to a reminder letter sent by the LCS. She did release the file eventually but, according to the committee, it was outside the stipulated time frame and possibly only as a result of a second complaint.

The committee also said the timing of the release of the file and an attempt to settle the matter at a late stage suggests Lawyer D was “simply trying to avoid possible disciplinary consequences”.

It was “dismayed at Lawyer D’s conduct and lack of participation in the complaints process” and decided her failure to comply in time with its order was “high end unsatisfactory conduct”. As well as the fine, the committee ordered the lawyer to pay $1000 costs.

While it isn’t clear if Lawyer D refused to hand over the file because of an unpaid bill, the old idea of the solicitor’s lien does not override principle 6 of the Privacy Act. This also applies to most other excuses for refusing a client’s information when a client requests it.

Image: Under the Sun - Acrylics on canvas - by Alison Ireland

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