The ABA Ethics Committee last week issued an opinion aimed at giving guidance on a sometimes-puzzling question: what portions of the file does a lawyer have to provide to a client at the end of the matter — including a client who pulls the plug on the representation?
In Opinion 471, the Committee interpreted Model Rules 1.15 (Safekeeping property) and 1.16(d) (Protecting client’s interest on termination of representation). Based on its own prior 1977 informal opinion, the Committee again endorsed the “end-product” approach — actually followed by only a minority of jurisdictions.
Under that approach, the client is not necessarily entitled to the entire file at the termination of representation. Rather, what the lawyer must surrender are documents that are the end product of the lawyer’s services. In contrast, the lawyer is not required to automatically surrender material that may have led up to the creation of that end product.
The Committee’s laundry list of some items exemplifying the end products of a representation include:
- materials the client has provided to the lawyer;
- legal documents filed with a tribunal — and those completed and not yet filed;
- executed instruments, like contracts;
- orders and other records of a tribunal
- correspondence issued or received on relevant issues, including e-mail and other electronic correspondence that has been retained according to a firm’s document retention policy;
- evaluations or records the client has paid for;
- discovery materials.
Exempted from the definition of end products: material that the lawyer generated for internal use, or for the lawyer’s own purpose in working on the client’s matters — especially when those matters are already concluded. So, among the things that lawyers do not necessarily have to return at the end of the representation:
- drafts;
- internal legal memos and research materials;
- internal conflict checks;
- hourly billing statements;
- notes regarding an ethics consultation.
The last two items are interesting. Hourly billing statements will likely be relevant in any fee dispute, and subject to a discovery tussle to the extent not turned over to the client. And notes of internal ethics consultations have been the subject of sharp dispute when clients and lawyers sue each other, centering on whether the attorney-client privilege applies. (We’ve discussed that dispute before, here.)
Even while again adopting the end-product approach, the Committee emphasized that it can’t be applied mechanically. Especially if the matter is not finished when the client ends the representation, “the former client may be entitled to the release of some materials the lawyer generated for internal law office use primarily for the lawyer’s own purpose…” A lawyer’s obligation under the rules “reasonably gives rise to an entitlement to those material that would likely harm the client’s interest if not provided,” and sometimes that may involve turning over internal or preparatory materials.
It’s been noted that the Committee’s opinion appears to avoid as many questions as it answers. And the opinion does seem to say that lawyers don’t have to turn over preparatory materials …. unless they do.
But as much as we may want black and white answers to our ethics questions, this is not an area where that’s possible, and lawyers will continue to have to make reasoned judgments about what their obligations are when it comes to handing back client files. And as always, check your own jurisdiction’s rules and ethics opinions; they will vary.