It is the stuff of attorney nightmares. You worked diligently for years for an ornery client, when the client comes into the office demanding her file so she can take it to her “new” lawyer. This situation generally involves a client who is unhappy with the work you did, perhaps even threatening to sue you for legal malpractice. Often the client owes fees or costs. The situation is always messy. The situation is stressful. A client may insist on receiving their file right then and there.
There are any number questions an attorney will have in these situations. Do I have to give the client the file even if they have not paid my fees and costs? What do I have to give them? Do I have to give the client paper copies or can they be electronic? Do I have to turn over my notes and other work product? Do I have to hand the file over immediately if the client insists on it?
Pursuant to Pennsylvania Rule of Professional Conduct 1.16(d), dealing with the termination of the attorney-client relationship: “Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law.”
This of course begs the question of what are “papers and property to which the client is entitled,” and what papers “relating to the client” does the law permit the attorney to retain.
In 2007, the Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility authored its formal opinion 2007-100 which provides general guidance on questions regarding clients’ files. As the committee noted, “client files are maintained by a lawyer for the benefit of his or her principal, the client.” The committee cited to Maleski v. Corporate Life Insurance, 163 Pa. Commw. 36, 641 A.2d 1 (1994), reconsideration denied, 163 Pa. Commw. 49, 641 A.2d 7 (1994), for the proposition that not only does the client have a right of access to the file, but also has an ownership interest in the contents of the file. In Maleski, the court held: “Notes and memoranda are part of the package of goods and services which a client purchases when they retain legal counsel. The client is entitled to the full benefit of that for which they pay. We therefore believe that once a client pays for the creation of a legal document, and it is placed in the client’s file, it is the client, rather than the attorney who holds a proprietary interest in that document. When a client requests that its property held by an attorney be turned over, under Rule 1.15(b) the attorney must comply.”
The committee balanced the property right of the client in file with the fact that client files are also business records of the lawyer and the lawyer is therefore entitled a copy. The committee provided a simple answer to the question of who pays to make a copy of the file. As the file belongs to the client, “the lawyer may, at his or her own expense, make and retain copies of client files.” As a general rule, all originals are the client’s property and should be returned to the client.
The committee noted the lawyer-client agreement can define what the content of the client file is and the terms of client access and possession, but warned any such agreement will be subject to close scrutiny. An agreement regarding the cost of compiling, copying, and delivering a file can and should be part of an attorney-client agreement. However, the lawyer bears the burden of creating his own copy if the client seeks actual possession of the file.
The committee noted the term “client file” is not easily defined. The committee noted the “client file” includes not only the physical items placed in a file folder, drawer, or box, but also include “a variety of other documents relating to that particular representation, such as electronic mail messages, telephone notes, research notes, billing materials and other things.” The file includes both substantive and administrative materials.
A particularly thorny issue arises in determining what material might fall outside the scope of the “client file.” The committee suggests this may include “internal memoranda and notes generated primarily for a lawyer’s own purposes in working on the client’s problem.” At the same time, the committee notes the majority of jurisdictions, including Pennsylvania based upon the Maleski opinion, follow the “entire file” approach that the client is “entitled to everything in the lawyer’s possession necessary to the continued representation of the client.”
The committee developed a specific formulation of what constitutes the entire substantive file the client is entitled to: “A client is entitled to receive all materials in the lawyer’s possession that relate to the representation and that have potential utility to the client and the protection of the client’s interests. Items to which the client has a presumed right of access and possession include: all filed or served briefs, pleadings, discovery requests and responses; all transcripts of any type; all affidavits and witness statements of any type; all memoranda of law, case evaluations, or strategy memoranda; all substantive correspondence of any type (including email), including correspondence with other parties or their counsel, all correspondence with the client, and correspondence with third parties; all original documents with legal significance, such as wills, deeds and contracts; all documents or other things delivered to the lawyer by or on behalf of the client; and all invoices or statements sent to the client.
The committee’s expectation is that the client would not normally need or want, and therefore would not typically be given, in response to a generalized request for access to or possession of the “file,” the following types of documents: drafts of any of the items described above, unless they have some independent significance (such as draft chains relating to contract negotiations); attorney notes from the lawyer’s personal files, unless those notes have been placed by the attorney in the case file because they are significant to the representation; copies of electronic mail messages, unless they have been placed by the attorney in the file because they are significant to the representation; memoranda that relate to staffing or law office administration; items that the lawyer is restricted from sharing with the client due to other legal obligations (such as “restricted confidential” documents of a litigation adversary that are limited to counsel’s eyes only). A client is entitled, however, to make a more specific request for items that are not generally put in the file, and the client is entitled to such items unless there are substantial grounds to decline the request.
Lawyers frequently ask if a lien can be imposed upon the client file if the client owes fees or costs. Philadelphia Bar Association ethics Opinion 87-1 suggests such a retaining lien is permissible, but strongly cautions against asserting such a lien stating they should be utilized only as a matter of last resort when necessary to prevent fraud or gross imposition by the client. Likewise, in its formal opinion 2006-300, the Pennsylvania Bar Association Legal Ethics and Professional Responsibility Committee found generally that where the client has not paid for services rendered, the attorney may retain papers related to the unpaid services, unless it would cause substantial prejudice to the client. An attorney must turn over portions of the file related to work that has been paid for, even if other fees remain unpaid.
The question of what an attorney is required to provide in response to a client’s demand for a file has many different nuances. However, the overarching rule is the file belongs to the client, and the client is entitled to the file. •