Ezel / Ethics Opinions / ABA
ABA 2015-07-01

What parts of the file must a lawyer turn over to a former client at the end of a representation?

Short answer: The papers and property the client is entitled to, but not materials the lawyer made for the lawyer's own purposes. The opinion concludes that client-provided materials, filed and executed documents, correspondence, and discovery must be surrendered, while drafts, internal notes, and research generally need not be, unless the matter is unfinished and withholding them would harm the client.
Currency note: this opinion is from 2015
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.
View original ethics opinion (PDF)

ABA Formal Opinion 471: Surrendering Papers and Property to a Former Client

Short answer: The opinion concludes that on termination a lawyer must surrender the papers and property to which the former client is entitled, but need not turn over materials the lawyer generated for the lawyer's own purpose, except that when the representation ends before the matter is completed, protecting the client's interest may require surrendering certain internally generated materials.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the American Bar Association's Model Rules of Professional Conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.

Plain-English summary

The opinion addresses what a lawyer must hand over when a representation ends, using the example of a municipality whose 10-year contract expired and who asked its former, fully paid lawyer to turn over all open and closed files. It anchors the duty in Model Rule 1.15, which requires safeguarding and promptly delivering a client's property, so the lawyer must at minimum return all property the client supplied. Rule 1.16(d) then requires the lawyer to take reasonably practicable steps to protect the client's interests, including "surrendering papers and property to which the client is entitled."

Because the Rules do not define those words and jurisdictions split between the majority "entire file" approach and a narrower "end-product" approach, the opinion declines to adopt a single universal definition but affirms Informal Opinion 1376 (1977) as stating "the minimum required by the Rules." It then lists the categories a lawyer must surrender: materials the client provided, documents filed or ready to be filed with a tribunal, executed instruments, tribunal orders, relevant correspondence, discovery and evidentiary exhibits, requested legal opinions, and third-party assessments the client paid for. It lists categories the lawyer need not surrender: drafts, internal memoranda and research, conflict checks, personal notes, billing statements, and the lawyer's assessments of the client. As the opinion frames the line, "a client is not entitled to papers and property that the lawyer generated for the lawyer's own purpose in working on the client's matter."

The opinion adds an important qualification for unfinished matters: internally generated materials that have no final product and whose withholding would harm the client must also be provided, for example the most recent draft and supporting research where a filing deadline is imminent, because "final documents supersede earlier drafts." It also notes that "the fact that copies of certain materials may have been previously provided to a client is not dispositive of whether the lawyer must also provide such materials at the termination of a representation," though prior provision may bear on who pays for duplication.

In practice

Under this opinion, a lawyer closing out a representation returns the client's own materials and the documents the client is entitled to, and is not obligated to hand over internal work product such as drafts, research, and notes in a concluded matter. The opinion holds that when the matter is unfinished, internally generated materials with no final product must be surrendered if withholding them would prejudice the client, and that having previously given the client copies does not by itself excuse the surrender duty.

Common questions

Q: Do I have to return the original documents my client gave me?

A: Per the opinion, yes; absent other law or a valid Rule 1.15(e) dispute, the lawyer must return all property the client provided, including originals.

Q: Must I turn over my internal notes, drafts, and legal research?

A: The opinion says generally no in a concluded matter; those are generated for the lawyer's own purpose. But in an unfinished matter, drafts and supporting research must be provided if withholding them would harm the client.

Q: Which categories of file material clearly must go to the client?

A: The opinion lists client-provided materials, filed or ready-to-file documents, executed instruments, tribunal orders, relevant correspondence, discovery and exhibits, requested opinions, and paid-for third-party assessments.

Q: I already gave the client copies during the case. Do I still have to provide them again?

A: Per the opinion, prior provision is not dispositive of the surrender duty, though it may bear on who pays for any duplication.

Background and rules framework

The opinion interprets Model Rule 1.16(d) (steps to protect a client's interests on termination, including surrendering papers and property) and Model Rule 1.15 (safeguarding and delivering client property). It references Model Rule 1.4 (communication), noting that regular communication during the representation reduces later file disputes, and the Rule 1.0 definitions of "reasonable" and "writing."

Citations and references

Rules of Professional Conduct:

  • ABA Model Rule 1.16 (declining or terminating representation), including 1.16(d)
  • ABA Model Rule 1.15 (safekeeping property)
  • ABA Model Rule 1.4 (communication)

Other opinions cited:

  • ABA Informal Op. 1376 (1977): the minimum file materials required
  • Colorado Formal Op. 104 (1999); D.C. Bar Ops. 333 (2005) and 357 (2012): entire-file approach
  • Ohio Bd. Advisory Op. 2010-2 (2010): summary-of-facts approach

Cases:

  • In re Sage Realty Corp. v. Proskauer Rose, 689 N.E.2d 879 (N.Y. 1997)
  • Corrigan v. Teasdale, 824 S.W.2d 92 (Mo. 1992)

See also

Source