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

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

• ABA Formal Op. 476: Confidentiality When Withdrawing for Unpaid Fees
• ABA Formal Op. 473: Subpoenas for Client Information
• ABA Formal Op. 479: The "Generally Known" Exception
• RI Ethics Advisory Panel Op. 2000-6: Disposition of a Joint Client File Between Divorcing Former Joint Clients
• RI EAP Op. 2010-06: Joint Clients With Conflicting Instructions Are Both Entitled to the File

Source

• Landing page: ABA Formal Ethics Opinions index
• Original PDF: aba-formal-opinion-471.pdf