When a client discharges a lawyer and asks for the file, must the lawyer hand over everything in it, including the lawyer's notes and internal memos?

Plain-English summary

A client discharged his lawyer and asked for a copy of the file to take to new counsel. The file held the client's original documents, copies of pleadings and correspondence, investigator's reports, the lawyer's notes of conversations with opposing counsel, witnesses, and experts, sample pleadings from other cases, and the lawyer's notes on the lawyer's impressions of the client. The Committee was asked whether the lawyer must provide a copy of everything in the file.

The opinion analyzes the duty under Rule 1.16(d), which requires a lawyer on termination to take reasonable steps to protect the client's interests, including surrendering papers and property to which the client is entitled. Setting aside retaining-lien questions (which it leaves to Ethics Opinion 95-6), the Committee concludes that the lawyer must presumptively give the client access to the entire file unless substantial grounds exist to refuse. In most instances that means access to original client documents, copies of pleadings and correspondence, investigator's reports, and notes of conversations with opposing counsel, witnesses, and experts.

The opinion identifies narrow exceptions. A lawyer need not disclose documents whose disclosure would violate a duty of nondisclosure owed to a third party or imposed by law, such as a legal memorandum prepared for a different client in another case and merely filed in this client's file. Access may also be denied to documents intended for internal law-office review and use, such as preliminary impressions recorded to direct staff, and to notes of the lawyer's impressions of the client, unless withholding would significantly prejudice the client. The Committee declines to adopt the minority "end product" versus "work product" distinction, siding with the majority view that the client gets presumptive access to the entire file on the represented matter, subject to those narrow exceptions. It adds that the opinion creates no new duty to retain any particular document.

In practice

Under this opinion, as the Alaska rules stood at the time, a discharged lawyer must presumptively turn over the entire client file under Rule 1.16(d), not just the "end product." The opinion holds that the lawyer may withhold only narrow categories: documents subject to a nondisclosure duty owed to a third party or imposed by law, and internal law-office documents such as preliminary staff-direction memos and notes on the lawyer's impressions of the client, and the latter only where withholding would not significantly prejudice the client. The opinion separates this duty from any retaining-lien question, which it leaves to Ethics Opinion 95-6, and states it does not create a new document-retention duty.

Common questions

Q: Does a discharged lawyer have to give the client the whole file?

A: The opinion concludes the lawyer must presumptively give the former client access to the entire file on the matter unless substantial grounds exist to refuse.

Q: Can the lawyer keep internal notes and impressions of the client?

A: Per the opinion, access may be denied to documents intended for internal office review and to notes of the lawyer's impressions of the client, but only if withholding would not significantly prejudice the client.

Q: What about a memo the lawyer wrote for a different client's case?

A: The opinion says a memorandum prepared for another client and merely placed in this file need not be produced, because surrendering it could violate the confidentiality owed to the other client.

Q: Does the lawyer's right to be paid let the lawyer hold the file?

A: The opinion does not resolve retaining liens here; it cites Ethics Opinion 95-6 for the principle that the lawyer's interest in getting paid is subordinate to the client's rights, and addresses only what to return when no lien is asserted.

Background and rules framework

The opinion interprets Alaska Rule of Professional Conduct 1.16(d) (declining or terminating representation; Model Rule 1.16), which requires the lawyer to surrender papers and property to which the client is entitled on termination and permits retention of papers only to the extent allowed by other law. The opinion notes Alaska's statutory attorney's lien (AS 34.35.430) but does not resolve lien questions, pointing to Ethics Opinion 95-6. It adopts the majority view among ethics authorities favoring presumptive access to the entire file over the minority "end product/work product" distinction.

Citations and references

Rules of Professional Conduct:

• Alaska RPC 1.16(d) (duties on termination; surrender of papers and property)

Statutes:

• AS 34.35.430 (statutory attorney's lien)

Other opinions cited:

• Alaska Ethics Opinion 95-6 (retaining liens; lawyer's interest subordinate to client)
• Cal. Formal Op. 1992-127; Conn. Op. 94-1; Ga. Formal Advisory Op. 87-5; Ohio Op. 92-8; Oregon Formal Op. 1991-125 (majority view)

See also

• CA Op. 2007-174: Electronic Client Files at Termination
• ISBA Ethics Op. 01-01: Former Client Access to Files
• CA Op. 2001-157: Retention of Closed Client Files

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/2003-3.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

ALASKA BAR ASSOCIATION
ETHICS OPINION 2003-3
Documents to be Included in File Returned to Client on Termination of Services The Committee has been asked the following question: A client decides to discharge his lawyer and asks the lawyer to provide a copy of the lawyer’s file so that the client can take the file to a new lawyer. The lawyer’s file contains original documents from the client, copies of pleadings and correspondence, investigator’s reports, notes of the lawyer’s conversations with opposing counsel, witnesses, and experts, sample pleadings from other cases, and notes by the lawyer regarding the lawyer’s impression of the client and the client’s often contentious communications with the lawyer. Must the lawyer provide a copy of everything in the file to the client? Discussion Rule 1.16(d) governs the lawyer’s obligations to the client upon termination of the representation: (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a 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 that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law. ALASKA R. PROFESSIONAL CONDUCT 1.16(d) (emphasis added). The comment to the model rule provides: Assisting the Client Upon Withdrawal Even if the lawyer has been unfairly discharged by the client, a lawyer must take all reasonable steps to mitigate the consequences to the client. The lawyer may retain papers as security for a fee only to the extent permitted by law.

Alaska law provides for a statutory attorney’s lien. See AS 34.35.430. Thus, a lawyer who has not been paid for his or her services may be entitled to assert a lien against the file. However, discussed in Ethics Opinion No. 95-6, the lawyer’s interest in getting paid must be subordinate to the rights of the client. This opinion does not offer further elaboration upon the retention of papers as security. Rather, this opinion addresses the question of what items to return to the client when a transfer occurs unhampered by considerations of retaining liens. The Committee concludes that the attorney must presumptively accord the client access to the entire file unless substantial grounds exist to refuse. Thus, addressing the items referenced in the question presented, in most instances the lawyer is required to accord access to original documents from the client, copies of pleadings and correspondence, investigator’s reports, and notes of conversations with opposing counsel, witnesses and experts. There are instances, however, where the physical file maintained by the lawyer will include documents which the lawyer need not disclose. For instance, a lawyer should not be required to disclose documents violating a duty of nondisclosure owed to a third party, or otherwise imposed by law. If the lawyer wrote a memorandum in Case A that dealt with a particular issue of law that was also germane to Case B, it would not be uncommon for the lawyer to place a copy of that memorandum in the Case B file. Since the memorandum was not prepared in whole or in part for the client in Case B, that client has no right to receive that document. Indeed, the lawyer might well be violating a duty of confidentiality or secrecy owed to the client in Case A if the memorandum were surrendered to the client in Case B. Additionally, access may be denied to documents intended for internal law office review and use. This might include, for example, preliminary impressions of the legal or factual issues presented in the representation, that are recorded primarily for the purpose of giving internal direction to staff. Access might also be denied to notes relating to the lawyer’s impression of the client. These documents may be withheld unless to do so would significantly prejudice the client. The Committee declines to join a minority of legal ethics authorities distinguishing between the “end product” of an attorney’s services and the attorney’s “work product” leading to the creation of those end product documents.1 “End product,” under the minority view, includes such items 1

See, e.g., Alabama State Bar, formal Ethics Opn. RO-86-02; Illinois State Bar Assn., Opn. No. 94-13; North Carolina State Bar Ethics Comm., RPC 178 [1994].

as pleadings actually filed in an action, correspondence sent or received by the attorney, or other papers exposed to public light by the attorney to further the client’s interest. The attorney’s “work product,” to which the client is not entitled access under the minority view, includes all preliminary documents used by the attorney to reach the end result, such as internal legal memoranda and preliminary drafts of pleadings and legal instruments. As to these and similar documents, the minority view is that the client is only entitled to access to the extent of a demonstrated need in order to understand the end product documents, with the burden of justification on the client. The Committee finds in accordance with a majority of other ethics authorities that affording the client presumptive access to the attorney’s entire file on the represented matter, subject to narrow exceptions, represents the sounder view.2 As a general proposition, unless there is a strong reason for not producing or providing documents, a former client is to be accorded access to any documents possessed by the lawyer relating to the representation.3 Approved by the Alaska Bar Association Ethics Committee on May 1, 2003. Adopted by the Board of Governors on May 6, 2003.

G:\Ds\COMM\Ethics\OPINIONS\2003-3.doc

2

See, e.g., State Bd. Of Cal. Standing Comm. On Professional Responsibility and Conduct, Formal Opn. No. 1992-127; Connecticut Bar Assn. Comm. On Professional Ethics, Opn. No. 94-1; State Bar of Ga., Formal Advisory Opn. No. 87-5; State Bar of Mich. Comm. On Professional and Judicial Ethics, Syllabus CI-926
[1983]; Ohio Sup. Ct. Bd. Of Comm’rs on Grievances and Discipline, Opn. No. 92-8; Oregon State Bar Assn., Formal Opn. No. 1991-125. 3 By addressing the ethical requirement to produce documents that are in the attorney’s files, this opinion does not create any new duty to retain any particular document.