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It is drilled into us during ethics classes, studying for the Multistate Professional Responsibility Examination, and in continuing legal education courses: When a client requests it, you must hand over “the file.” But have you ever stopped to think, “What exactly is the file?”
The question is a lot more complicated than we are led to believe.
American Bar Association Model Rule 1.16(d) states that upon termination of a representation, an attorney shall “surrender papers and property to which the client is entitled” (among other duties). Typically, this is thought of in the profession as “returning the file.”
What an attorney keeps on hand relating to a client’s representation will vary from office to office, of course. A lawyer’s actual paper file may be virtually nothing these days, since many offices have gone paperless. If not entirely non-existent, a paper file is likely to be a small fraction of the overall record of a matter.
Electronically, the file would most certainly include email correspondence, which has taken the place of the voluminous written letters that used to populate manila folders in file cabinet drawers. We also tend to have significant work product and pleadings, client documents and other files on our hard drives and servers.
Today our phones also house a lot of information about client work, including interfaces to our billing software, text messages, voice mails and perhaps notes in various apps.
Knowing that our actual “files” contain a vast array of types of information on multiple forms of media, what do you have to hand over to the client?
Unfortunately, there is not a very clear or definitive answer to this question that applies nationwide. Here, however, are key issues to consider when your former client requests “the file.”
Look first to state rules. When faced with determining what materials need to be provided to a former client, start by looking at your own jurisdiction’s rules and case law. Some states have set out useful guidance.
Look at the status of the matter. Among the materials that are potentially subject to turning over are work product, drafts, notes and research, depending on the state of the matter and whether those materials may be useful or even necessary for the client’s interests to be protected. Consider, for instance, the scenario where a client has hired you to draft a complaint, has paid you for several hours of work, but the complaint has not been filed. Your research and drafts of the complaint are necessary for the client to get value out of the money he has paid you, and those materials will go a long way toward the next attorney being able to file the complaint. On the other hand, if the complaint was filed long ago and the representation is terminated much later in the course of the matter, those drafts and research materials may be entirely useless to the client.
Look at the impact on others. If any of the materials you might produce as part of the file have an impact on another person, such as materials that would violate your duty of non-disclosure owed to a third party, then it is likely that you have an applicable exception permitting you to withhold the materials.
Look to reasonableness. Rule 1.16(d) requires the lawyer to “take steps to the extent reasonably practicable to protect a client’s interests.” The reasonableness standard is critical in analyzing your duties to the former client. For instance, if the client were to demand all text messages on your phone relating to the matter, but those messages were not easily retrieved or stored on removable media or otherwise shared, and they contained no material of any real significance, it would seem entirely reasonable to refuse to attempt to produce them under the reasonableness standard.
The fact that there is no simple explanation for what constitutes “the file” makes clear that you must carefully consider what, exactly, you are obligated to provide when asked to surrender property to which the client is entitled. This is not a task to delegate to a non-lawyer — it is your ethical duty to provide the right materials. Look to what you have stored on the client’s matter, your state’s guidance, and what the particular facts and circumstances warrant in terms of the production. Also, it can be quite useful to have a conversation with the client before sending over boxes of materials the client may not need.
Failure to return a client’s file can lead to ethics charges, so be sure to respond completely and reasonably to the client’s request to avoid having to explain later.
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