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The variety of responses in the comments to this tweet is curious. This is my take as an information lawyer, who does primarily solicitor-instructed work, but also does direct access (pro bono). Scenario: lay client wants barrister’s (presumably handwritten) notes from a trial. https://twitter.com/brummybar/status/1343908760717324288
Let’s get a red-herring out of the way: “ownership”. Ownership relates to ‘property’. May be relevant to e.g. solicitors’ statutory liens under over papers pending payment of fees etc. The barrister ‘owns’ the physical notebook & indeed any intellectual property in the note.
But the client isn’t claiming ownership of the note(book) or the IP. They just want a copy of the note for the *information contained within the note*. Maybe just curiosity, maybe because they are appealing (alone or with new lawyers), maybe to sue you/solicitor for prof neg.
What *legal right* do they have to the information in the note? Potentially contractual rights (depending on terms) to allow them to litigate their case once you’re no longer instructed. Almost certainly some data protection right insofar as the note constitutes personal data.
Data protection Subject Access Requests (“SARs”) entitle a data subject (here the lay client) to a copy of their ‘personal data’, not ‘documents’ strictly speaking, but often it can be hard (if not practically impossible) to separate personal data from the document containing it.
The usual bases for refusing legal notes on a SAR don’t apply: the legal professional privilege belongs to the lay client, not the barrister; similarly, there is little confidentiality that could be asserted *against* the lay client (the confidentiality rights are the client’s).
(Given this is a trial, presumably held in open court, there will be neither confidentiality nor privacy in what was said: such rights could only attach to counsel’s own ancillary notes/observations/choices of what exactly to record but not to e.g. a pupil’s verbatim transcript).
Ultimately, if the lay client is seeking the note, they likely have a reason for needing it: transcript unavailable, dispute as to what happened at a hearing, further appeals/litigation etc. Assuming that & given BSB duties to clients, what is the basis for a barrister’s refusal?
I don’t take many notes, handwritten or otherwise. If/when asked by lay clients (or indeed solicitors) for a copy of my note of a hearing, legal rights aside, I’m not sure it would occur to me to refuse (although I’d be concerned about disappointing them by its sparseness).
