From the Lawyer’s Files…Which Documents Belong to Former Clients?

            The American Bar Association (ABA) recently released a formal opinion concerning the ethical obligation of a lawyer to provide a former client with documents relating to the previous representation. In 1977, the ABA released an informal opinion about a lawyer’s ethical duty to deliver files to a former client. Considering that technological advances have affected how lawyers “create, communicate, use, and store materials related to client representations,” the ABA released this formal opinion to clarify and update the lawyer’s duty pursuant to Model Rules of Professional Conduct 1.15 and 1.16.

Rule 1.15 provides that lawyers must safeguard client property and promptly deliver it to the client upon the client’s request. Additionally, Rule 1.16(d) requires that a lawyer take steps that are “reasonably practicable to protect a client’s interests.” These rules require a lawyer to surrender certain documents. The question then becomes: which documents are former clients entitled to receive?

After cautioning lawyers to review the law in the jurisdiction in which they practice, the opinion describes the two approaches that are most commonly used. A majority of jurisdictions use the “entire file” approach, whereas others use the “end-product” approach. Under the majority rule, at the termination of a representation, a lawyer must surrender papers and property related to the representation in the lawyer’s possession unless a specific exemption applies.  In contrast, the minority rule attempts to distinguish between the “end-product” of a lawyer’s services, which must be surrendered, and material that was used in the creation of that “end-product,” which need not be automatically surrendered.

Further, the opinion presents a factual scenario where a lawyer represents a client in an ongoing matter when the lawyer is terminated. Under these circumstances, the former client may be entitled to receive more documents. For example, if there is an upcoming deadline, the most recent draft and relevant supporting research would need to be surrendered.

The Model Rules of Professional Conduct require that a lawyer provide a former client with certain documents upon request and to the extent reasonably practicable to protect the client’s interests. The ABA’s Formal Opinion 471 delineates what types of documents this requirement encompasses.  The full opinion can be found here.

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