Often when a client instructs an attorney on a matter, the client provides the attorney with a substantial amount of information in order for the attorney to then attend to the legal process on the client’s behalf. Most often clients then want to be kept up to date as to the progress of their matters, with various degrees of success. Some attorneys are good communicators, and regularly update their clients, whilst other attorneys unfortunately fail to regularly update their clients. Many attorneys’ mandates have been terminated mostly due to a lack of communication. This often leads to the question being asked as to who the owner of the information held by the attorney is, and whether the client can insist on access to his/her documentation and information pertaining to the legal matter.
This article is not intended to provide legal advice, but a short overview of the legal position is important for this discussion. In general, an attorney has a lien (a right of retention) over documents in the attorney’s possession and on which work has been performed, which has the effect that the attorney is entitled to hold such documents until such time as his fees in respect thereof have been paid. In other words, if the client wishes to close the file to transfer the matter to another law firm, the attorney can withhold all documents for which he is entitled to write a fee, until such time as the accounts have been paid.
This right of retention is to be distinguished from access to the information contained in those documents. In principle, there is no basis upon which an attorney can refuse a client access to look at the documents in the attorney’s file, irrespective of whether the client’s account has been paid or not.
These principles of course date from times when all court work was paper-based, correspondence consisted of physical letters sent by post, and courts always insisted on having the original papers. In the modern era, where much of the communication takes place in electronic form, some of these rules might have to be revisited. For example, an email sent from the client to the attorney is no longer a physical piece of paper filed in the attorney’s office, but an electronic copy thereof is kept on both the attorney’s and the client’s electronic devices – usually more than one device. Given the current age in which we live in, where information, and access to such information in a structured manner, has become more and more important, it is therefore imperative that both law firms and their clients take heed of these changes. Accessible information has become so entrenched in our society that most of us deem it our right to access the information that people we contract with have about us.
This right to access to information has indeed been constitutionally entrenched in South Africa, with section 32(1)(b) of the South African Constitution providing that every person has the right to any information held by another person, and which information is required for the exercise or protection of any rights.
Clients are becoming alive to the fact that they can demand access to the information as to the progress of the legal matters from their attorneys. Attorneys are also becoming aware that such access should be given to clients on a regular basis, even if it is for no other reason than to provide better client service than their competitors.
It is therefore in this space that Lexa can provide assistance to both parties. It provides the client with access to the information pertaining to the legal matters, with little or no extra effort from the attorney to provide such information. Based on the above, it is also clear why increased collaboration and access to information has been flagged as some of the biggest trends in legal practice over the past year or two.
Law firms wishing to stay one step ahead of their competitors would therefore do well to consider innovative ways in which clients can have access to the information pertaining to their legal matters on a continuous basis. This will become more and more important as time progresses.