An attorney-client representation may terminate for any number of reasons. Some common examples include natural resolution of the matter for which the attorney was engaged, an irretrievable breakdown in the attorney-client relationship, a client’s failure to pay legal bills, or an attorney’s firing due to client dissatisfaction. Regardless of how the representation ended, an attorney’s obligations to his or her client do not end there. There is often confusion about what property/documents attorneys must retain and what must be turned over to the client when the engagement ends. This article examines the scope of an attorney’s duty to turn over certain materials to a client upon termination or withdrawal and discusses potential consequences from a failure to fully comply with these responsibilities.
Protection of Client’s Interest After Representation Ends
ABA Model Rule 1.16(d) provides that upon termination of representation, “a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as… surrendering papers and property to which the client is entitled[.]” See also N.J. RPC 1.16(d); N.J. RPC 1.15(b)(a lawyer must promptly deliver to a client any funds or other property that the client is entitled to receive). A lawyer is always under the ethical obligation to safekeep client property, and these obligations remain even “if the lawyer has been unfairly discharged by the client[.]” See ABA Model Rule 1.15; see also Comment [9] to ABA Model Rule 1.16 (2018).
Do not assume that a possible retaining lien entitles you to withhold turnover of a client file if you are discharged and owed legal fees, as the rules for withholding files can vary from jurisdiction to jurisdiction. For example, in New Jersey, RPC 1.16(d) provides that “[n]o lawyer shall assert a common law retaining lien.” Pennsylvania, however, recognizes a retaining lien, subject to exceptions, as “an equitable, passive lien, without the power of enforcement or sale and valuable only to the extent that the attorney’s retention of a client’s files will embarrass the client.” Maleski by Chronister v. Corp. Life Ins. Co., 641 A.2d 7, 9 (Pa. Commw. 1994). In some jurisdictions, including the District of Columbia and Kentucky, the existence of a retaining lien or unpaid legal fees does not obviate the obligation to surrender a client’s file after the representation is concluded. See In re Douglass, 859 A.2d 1069 (D.C. 2004)(retaining lien is permitted only for work product for which attorney has not received payment, thus, withholding client’s entire file constituted violation of RPCs); Ky. Ethics Op. E-395 (1997)(attorney may not withhold client file due to dispute over unpaid fees but may retain “work product”).
Indeed, attorneys who failed to return a client’s file after the representation ended have found themselves subject to disciplinary action. See, e.g., In re Taylor, 229 N.J. 329 (2017)(reprimanding attorney for delay in delivery of client’s file); Brussow v. Utah State Bar, 286 P.3d 1246 (Utah 2012)(reprimanding attorney who refused to return a client’s file after representation ended); In re Arneja, 790 A.2d 552, 558 (D.C. 2002)(one-year suspension from the practice of law for attorney’s year-and-a-half delay in delivering client’s file). Practitioners will want to act swiftly in delivering the client’s file to avoid claims of improper delay or potential prejudice to the client if a matter is ongoing. This is particularly true in cases that involve a filing deadline or imminent statute of limitations. As a best practice, law firms and lawyers should prioritize the prompt return of a client’s file at the end of a representation and respond diligently to requests for materials that may have been omitted. See In the Matter of Eralides Eric Cabrera, DRB No. 21-216 (Jan. 21, 2022)(admonishing attorney for failing to promptly deliver former client’s file as requested on numerous occasions). Although it may be permissible in some circumstances, holding the file “hostage” is likely to create more problems than it solves.
What Must Be Turned Over?
A question that frequently arises is whether a client is entitled to every document generated during the course of a particular representation. This issue is most common as it relates to work product. The majority of jurisdictions follow the “entire file” approach, wherein a client is presumptively entitled to the “entire file” unless the attorney demonstrates that good cause exists to withhold certain materials under a recognized exception. See, e.g., ABA Formal Op. 471 (2015)(discussing ethical obligations of lawyer to surrender papers and property to which former client is entitled); SEC v. McNaul, 227 F.R.D. 439 (D. Kan. 2011)(adopting majority approach); Iowa Sup. Ct. v. Gottschalk, 719 N.W.2d 812 (2007)(same); Colo. Bar Ass’n Formal Op. 104 (1999)(failure to return entire file violates disciplinary rules). Some commonly recognized exceptions include, for example, internal law firm documents or materials subject to non-disclosure because of a duty to a third-party.
A minority of jurisdictions, on the other hand, employ an “end product” approach wherein a client is entitled to documents which constitute the “end product” of a lawyer’s services, but must otherwise show a need for access to an attorney’s work product. See, e.g., In re ANR Advance Transp. Co., Inc., 302 B.R. 607 (E.D. Wis. 2003)(adopting minority approach); Utah Bar Ass’n Advisory Op. 06-02 (2006)(same). This view assumes that the client should generally be entitled to receive materials such as communications by the attorney for the benefit of the client, “pleadings and other papers filed with a tribunal[,]” and investigative documents and “other discovery for which the client has paid[.]” ABA Formal Op. 471, at 3. Under either approach, an attorney is generally required to return certain records including contracts, wills, deeds, and corporate records that were prepared for the client.
Closed Files: Copying Costs and Retention
An attorney should, and in many cases must, retain copies of materials related to the representation as part of the client’s closed-out file. Part and parcel to a successful practice is implementation of a risk management system, including an adequate file retention policy. While many lawyers balk at increasing storage costs, the benefits of file retention are for both the client as well as the attorney who has an interest in maintaining a record of the representation in the event of a malpractice claim or disciplinary investigation. See, e.g., N.J. Advisory Comm. Op. 554 (May 16, 1985)(observing that lawyer’s interest in retaining client file is “for his [or her] protection against possible malpractice suits, or an ethical or tax inquiry.”). Because some records may not be permissibly destroyed, taking a careful inventory prior to storing a file and providing the client with original legally operative documents, such as wills, trusts, deeds and contracts, is a good idea.
In general, the costs associated with copying a client’s file for retention is borne by the attorney unless otherwise provided for in the retainer agreement. See In re Admonition to X.Y., 529 N.W.2d 688 (Minn. 1995)(violation of ethics rules to charge client for copying file absent written agreement); In re Henry, 684 S.E.2d 624 (Ga. 2009)(observing that charging client for copying file after attorney was discharged was “improper”). However, charges associated with assemblage and delivery of the client’s file may be chargeable to the client depending on the jurisdiction. See e.g., Sage Realty v. Proskauer Rose, 689 N.E.2d 879 (N.Y. 1997)(assemblage and delivery of documents may be properly charged to client); In re Anseth, 562 N.W.2d 385 (N.D. 1997)(cost of returning documents after discharge need not be borne by attorney).
The Bottom Line
Regardless of how a representation comes to an end, be it amicable or otherwise, lawyers must promptly return the file, property, and other papers to which the client is entitled. When in doubt over whether a client is entitled to certain materials, consult a colleague or reach out to counsel specializing in professional ethics. Finally, familiarize yourself with what costs may be properly charged to the client in your jurisdiction and put in place a retention policy if you do not have one.
Reprinted with permission from the June 9, 2023 edition of The Legal Intelligencer © 2023 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or reprints@alm.com.