Lawyers should turn over files when discharged from a case.

I am an attorney in a small firm and a client is discharging me in a case in litigation. When do I have to turn over the file to the new attorney and how do I protect my outstanding legal fees? Further, if the client asked me to return the file, can I withhold the file until outstanding legal fees are paid?

It is always frustrating to be discharged by a client, particularly if one is doing a good job. But under Rule 1.16 of the Rules of Professional Conduct, the client has an absolute right to discharge the lawyer and the lawyer then must abide by the client's wishes. But if the case is in litigation, the lawyer must remain as counsel unless and until the court allows the lawyer to withdraw. The lawyer should petition to withdraw based on the client's request. Until the court grants the withdrawal, the lawyer must continue as counsel and protect the client's interests.

If new counsel is entering his or her appearance, once that is done, the lawyer can then just praecipe to withdraw. The question, if new counsel then advises the prior lawyer to turn over the file, is whether this should be done. The answer is yes, but only after the new counsel has entered his or her appearance.

The lawyer does not want to turn over the file to a new attorney unless and until that new lawyer has actually taken over the case, i.e., entered his or her appearance of record. Once that occurs, the file should be turned over. Of course, if the client owes outstanding legal fees and costs, he or she can briefly withhold the file under Rule 1.16(d) under the theory of charging or retaining liens.

But charging or retaining liens can only go so far. The lawyer cannot withhold a file because of unpaid legal fees if the client would be prejudiced. Particularly if the matter is in litigation, it would be rare that there wouldn't be some prejudice to the client by not turning over the file. One could argue that the client could get the pleadings from the filings or off the electronic filings, but that is usually not sufficient. There are often depositions, investigative reports and more that should be turned over.

Hopefully, the new lawyer will agree to protect the outstanding fee. If not, both the lawyer and the client should receive a letter indicating that there is an outstanding fee and it should be protected out of any settlement or judgment. At least that puts the client and lawyer on notice not to distribute the disputed funds. As every lawyer knows, under Rule 1.15, if there is a dispute, the funds have to be maintained in the escrow account pending the dispute.

The second aspect of the question occurs if the client would ask for the file but has no new counsel. Obviously, an attorney is not going to give a file over to a client who is unrepresented until new counsel enters his or her appearance. If there is no litigation, the lawyer should provide the file if discharged. Again, if outstanding fees are due, then the lawyer can withhold the file with a returning or charging lien until the client satisfies the fee obligation, unless there is prejudice to the client.

The final question is who bears the cost of copying the file. The rule of thumb is if the client has paid all legal fees and costs, it is the lawyer who has to spend the money to make a copy if he or she wants one. The theory is that if the client has paid the lawyer, the client is entitled to his or her file. But if the client has not paid the lawyer, it is the client's responsibility to pay the copying costs.

Every lawyer should be careful in these requests for files. There is no surer way to get a disciplinary complaint than not turning over a file, particularly if the client may suffer from prejudice or if there is a new lawyer involved. Although, unfortunately, there is not a lot of professionalism any more in terms of protecting fees, the lawyer should turn over the file and then work out the fee situation as noted above. It is always difficult, but professionalism must prevail.

Former judges should be addressed the same as anyone else in the courtroom.

I am involved in litigation and the opponent is a former judge. How do I address this former judge in the courtroom?

Once a person is retired from judicial service, he or she is still entitled out of a matter of respect to be called a judge. Obviously, lawyers who are in private practice and were former judges should clearly reflect on their letterhead or advertisements, if they use the title, that they are no longer active and are retired in some capacity. Otherwise, it would be misleading to a client who might think he or she is getting an active judge as his or her attorney.

But, traditionally, former judges can, out of respect, be called judge when seen in public or even when they are practicing law. Although traditionally a justice should be called judge only once he or she retires, that tradition has long been forgotten and the term justice is allowed to be used.

When a former judge comes into a courtroom, it is a different situation. In a jury setting, a former judge should not be referred to by that title because it might create an unfair advantage. One would hope that the title of judge still has the respect it used to have and that obviously should not be a factor in resolving the legal issues that are in court between the former judge and another person.

Therefore, in a courtroom setting or even in the appeal papers, the former judge should not be referred to as such. His or her title should not be in the pleadings or the briefs and it should not be referenced in the courtroom.

Having said that, in a nonjury trial, it probably makes no difference and on appeal it really makes no difference because people who are trained in the law are not going to have the same reaction as a lay jury to a litigant who has "judge" in front of his or her name.

But the better practice, at least for the sake of appearance, because courtrooms are public places, is that a former judge may not use his or her title in the litigation. There is no disrespect intended to a former judge, but it does go a long way to ensure the perception of fairness during the trial. Members of the public might not understand otherwise. Of course, at least some experienced litigators find that jurors are not very receptive to former judges or lawyers who are litigants. Hopefully, that is not a true perception, but there are those who hold that opinion.

Similarly, if the opposing lawyer is a former judge, then again the title of judge should not be mentioned in a courtroom. All the same reasons apply.

Some states will not allow a former judge to participate in litigation once he or she retires from the bench without potentially forfeiting or jeopardizing his or her pension. New Jersey is a classic example where retired judges, with some exceptions, are not allowed to practice law upon retirement. Pennsylvania does not have that type of prohibition.

With all due respect to the former judicial officer, the title of judge should not be used in the courtroom, either when the former judge is an opposing party or when he or she is representing an opposing party. If a former judge wants to return to the practice of law, he or she has to be willing to win these cases on merit and not on any perceived advantage as a former judge.

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pa., 19381.