By Kevin Bank
Most lawyers know that when a representation ends for any reason, they need to provide the client with their file if the client requests it. This obligation comes from Model Rule 1.16(d) which has been adopted in some form by all of the states. The rule states:
Upon termination of representation a lawyer shall take steps to the extent reasonably practicable to protect the 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 extent permitted by other law.
As is so often the case, however, the devil is in the details. The Model Rule and its comments do not define what “papers and property” the client is entitled to. The only relevant comment that “even if the lawyer has been unfairly discharged by the client, a lawyer must take reasonable steps to mitigate the consequences to the client” and the “lawyers may retain papers for a fee only to the extent permitted by law.” See Comment 9 to the MR 1.16(d).
State bar associations, though the issuance of ethics opinions, have stepped into the vacuum. There are opinions from multiple states that address what papers and property the client is entitled to, and the related issue of whether lawyers can assert a “retaining” lien on the file if the lawyer is still owed a fee from the client. Lawyers are strongly advised to consult their own state bar’s ethics resources, or ethics counsel, to resolve the issue of what they need to provide to the client, and whether a “retaining lien” is permissible. There is substantial state variation, although as discussed below, the trend in a majority of states is to interpret “papers and property to which the client is entitled” very broadly. Even in those states that allow for broader exceptions to what the lawyer must include in the file that is provided to the client, the emphasis remains on protecting the client’s interests versus any property interest the lawyer has or may claim to have in the file. This is true even if the client owes the lawyer money. A lawyer who simply refuses to provide the client file to a client who requests and expresses a need for it is likely on shaky ethical ground no matter what state the lawyer is licensed in, unless the lawyer has asserted a valid retaining lien on the client’s papers. Any such blanket refusal would likely amount to an ethical violation in any state, based on the language of MR 1.16 and state equivalents.
1. Majority approach to definition of “client file”
Ethics opinions following the majority approach take a very broad view of what the lawyer must provide to the client upon termination of the representation. Under this approach, the lawyer must provide the “obvious items”, such as original documents provided by the client and the “end product” of the lawyer’s work (for instance, pleadings filed in Immigration Court or an application submitted on the client’s behalf to USCIS, which the client likely has already). In addition, the lawyer must provide document drafts, including drafts circulated outside of the lawyer’s firm, internal drafts of documents not yet finalized (because they could be of value to the client or successor counsel), copies of research materials (with the exception of materials that would disclose confidential information of another client), lawyer notes (with some exceptions discussed below), as well as internal emails and memos created while performing substantive or billable work that could have value to the client (such as summaries of conversations, deposition summaries, research memoranda, etc). See Washington State Bar Association Advisory Opinion 202401 (2024). The file must be produced as of the date lawyer/client relationship terminates, and it includes documents in all formats (paper and electronic). The lawyer’s duty to protect the terminated client’s interests includes “providing documents in accessible and editable electronic format”, where the documents are already maintained in that format and the client requests them in that format. See Colorado Formal Ethics Opinion 104 (2018).
The majority states do recognize some exceptions: The most notable of these is that lawyers can withhold personal notes/emails containing “subjective impressions” such as comments about identifiable persons expressing the lawyer’s (or lawyer’s colleague/assistant’s) subjective impressions of the client or other persons, or notes of brain-storming sessions that are unlikely to be of value to the client. Even then, the lawyer should not apply this exception overly broadly. If an item in this category contains both factual information and subjective impressions, the lawyer should still provide the document, but redact the subjective impressions.
Other categories of documents that do not need to be provided include (1) non-substantive documents such as reports from a conflict database, intake forms, documents relating to firm personnel matters, draft invoices and other “practice management” type documents; (2) documents or portions or documents that contain confidential information of another client; and (3) documents relating to the lawyer seeking ethics advice relating to the matter from another lawyer.
2. Minority approach to definition of client “file”
A minority of states view the lawyer’s obligation to surrender the file as more limited in scope. In these states, ethics opinions provide that lawyers do not need give the client drafts or working copies of documents, reasoning that withholding these materials will not prejudice the client. See Illinois State Bar Association Opinion 94-13. The lawyer’s personal research and the lawyer’s personal notes of interviews can also be withheld. These document are usually prepared only for the lawyer’s “personal use and internal review” and the client is not entitled to them. Id. States following the minority approach include Illinois, Alabama and North Carolina.
3. Is the obligation to surrender the file affect by the client’s non-payment of fees owed?
The question of whether a lawyer can withhold the file because the client owes the lawyer money is complicated. Many states permit a lawyer to assert a statutory “retaining lien” on client papers in the lawyer’s possession if the client has not fully paid the lawyer. There are significant state variations of opinion, however, as to how the lawyer’s right to a retaining lien should be balanced with the lawyer’s MR 1.16 obligations. A Washington ethics opinion holds that if the assertion of a lien would prejudice the former client, the duty to protect the former client’s interests supersedes the right to assert the lien. If there is no dispute about fees and the client has the ability to pay the outstanding charges, the lawyer may assert the lien. If there is a dispute about the fees owed, or the client does not have the ability to pay, “the lawyer cannot assert lien rights if there is any possibility of interference with the former client’s effective self-representation or representation by a new lawyer.” Washington Ethics Advisory Opinion 181 (1987). Colorado addresses the dilemma by stating that the duty to surrender the client file “may be deferred until such time as the lien is resolved.” Colorado Formal Opinion 104, supra. On the other side of the spectrum, at least one state, North Dakota, takes the position that asserting a common law retaining lien on the client file is prohibited. See North Dakota Rule of Professional Conduct 1.16 (d) (stating in the text of the rule that “no lawyer shall assert a common law retaining lien.”).
As a practical matter, lawyers should be very careful in their approach to this issue, particularly in a situation where the termination of the lawyer-client relationship has been contentious. A lawyer may justifiably be angry at a difficult client who has racked up substantial fees and not paid the lawyer, and then terminates the lawyer (or the lawyer terminates the client). However, withholding of the file, whether through the assertion of a lien or for any other reason, is likely to inflame the situation further. Clients who do not receive the file often file bar complaints, and bar disciplinary counsel may conclude that even with a valid retaining lien, the prejudice to the client outweighs the lawyer’s interest in getting paid. A better solution is to implement procedures to avoid the scenario of any client racking up substantial past due fees. Examples of such measures include requiring replenishment of advance fee trust deposits and terminating clients who have not made installment payments on their flat fee payment plans sooner rather than later.
4. Can a lawyer charge the client for preparing, copying and delivering the file?
In general, ethics opinions take the position that the question of who pays for the costs of surrendering the file can be set by contract, i.e., the fee agreement. For instance, a lawyer can include a term in the fee agreement that the lawyer will charge a reasonable set fee for the time and costs involved in preparing the file for the client, and/or that there will copying charges if the client requests paper copies of the file. But if no such term is included in the fee agreement, refusal to provide the file until the client pays duplication of other costs restricts the client’s right to the file, and is improper. Colorado Formal Opinion 104, supra. In short, to avoid later disputes, lawyers should consider addressing the issue of client responsibility for these kinds of costs in the fee agreement.
5. Conclusion
All states have adopted a version of the Model Rule that requires the lawyer to protect the client’s interests on withdrawal, and this includes providing the client with the client file when the representation terminates if the client requests it. Because there are state by state variations as to what is meant by the client “file,” lawyers should consult their state’s ethics opinions or ethics counsel to determine what their obligations are, particularly if they intend to withhold portions of the file. Lawyers should be particularly cautious if they intend to withhold the file or parts of the file on the basis that they have not been paid. Although retaining liens on client papers are permitted in some states, lawyers should be aware that resorting to a lien could result in adverse consequences for the lawyer that may not be worth it.