Can an Alaska lawyer withhold an expert or investigator's report from the client because the client has not paid for it?

Plain-English summary

The Committee was asked whether a lawyer may withhold a copy of an expert or investigator's report when the client agreed to pay for the report but did not. The opinion concludes that Ethics Opinion 95-6 controls: the lawyer may not withhold the report if the client would be prejudiced by doing so.

The opinion treats an expert or investigator's report as part of the client's file. Drawing on Opinion 95-6 (prejudice to the client is the paramount concern) and Opinion 2003-3 (the client is presumptively entitled to access to the entire file upon termination), it holds that the same considerations apply to expert and investigator reports. Each situation must be reviewed to determine whether withholding would prejudice the client. Where a matter is in litigation and the report is needed for an expert's testimony or contains information critical to the case, prejudice may be readily apparent; where an alternative report or appraisal can be readily obtained, the client may be inconvenienced but not prejudiced.

The opinion separately notes the lawyer's duty to inform under Rule 1.4. A lawyer may not withhold information to serve the lawyer's own interest or convenience; justified delay is limited to situations where harm may come to the client or another person.

In practice

The opinion holds that, under the Alaska rule as it stood at the time, an expert or investigator's report prepared with the client's consent and for the client's benefit is part of the client's file, and the lawyer's right to reimbursement for the expert's fee gives way to the client's needs when the material is essential to the client's case. Per the opinion, the analysis turns on whether withholding will prejudice the client, not on whether the client has paid.

The opinion also addresses attorney work product, such as demonstrative aids the lawyer commissioned. It states that no bright-line rule applies; the lawyer must look to whether the client will suffer prejudice if the essential materials are withheld.

Common questions

Q: Can an Alaska lawyer hold back an expert report until the client pays the expert's bill?

A: Only if withholding will not prejudice the client. The opinion concludes that the lawyer may not withhold the report where the client would be prejudiced, because the report is part of the client's file and the client's interests are paramount.

Q: Does it matter whether the case is in active litigation?

A: Yes. The opinion identifies litigation as a setting where prejudice may be readily apparent, for example where the report is subject to mandatory disclosure or the client needs it for an expert's testimony.

Q: What if the client could just get another report?

A: The opinion gives examples (a second medical opinion, an alternative appraisal, a duplicate probate inventory) where the client may be inconvenienced or face added expense but is unlikely to be prejudiced, and says the lawyer must weigh that against the lawyer's right to reimbursement.

Q: Does the duty to communicate factor in?

A: Yes. The opinion applies Rule 1.4 and states that a lawyer may not withhold information to serve the lawyer's own interest or convenience.

Background and rules framework

The opinion interprets the Alaska Rules of Professional Conduct governing the return of client property and communication with the client. It relies on Rule 1.16(d) (on termination, a lawyer must take steps to protect the client's interests, including surrendering papers and property to which the client is entitled), Rule 1.4 (Model Rule 1.4, keeping the client reasonably informed), and the client-file analysis of Ethics Opinion 95-6, which itself drew on Rule 1.15 (safekeeping client property) and the statutory attorney's lien.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.16 / Alaska RPC 1.16(d) (protecting client interests on termination; surrendering papers and property)
• Model Rule 1.4 / Alaska RPC 1.4 (keeping the client reasonably informed)
• Model Rule 1.15 / Alaska RPC 1.15 (safekeeping client property)

Other opinions cited:

• Alaska Ethics Opinion 95-6: withholding the client file for unpaid copying charges
• Alaska Ethics Opinion 2003-3: client access to the file on termination

See also

• Alaska Ethics Op. 95-6: Withholding the Client File
• Alaska Ethics Op. 2003-3: Documents in the Client File on Termination
• ABA Formal Op. 02-427: Security Interest to Secure a Fee
• RI EAP Op. 2010-06: Joint Clients With Conflicting Instructions Are Both Entitled to the File

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/2004-1.pdf

Original opinion text

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

ALASKA BAR ASSOCIATION
ETHICS OPINION NO. 2004-1
LAWYER’S RIGHT TO WITHHOLD EXPERT REPORTS
WHERE THE CLIENT FAILS TO PAY FOR THEM
The Committee has been asked to give an opinion as to whether it is
proper for a lawyer to withhold a copy of an expert or investigator’s report if the
client has agreed to pay for the report but has failed to do so.
It is the committee’s opinion that Ethics Opinion 95-6 controls this issue.
The lawyer may not withhold the report if the client would be prejudiced by
doing so.
DISCUSSION
A.

Prejudice To the Client Is The Determining Factor

In Ethics Opinion 95-6, the Committee previously opined that a client’s
files may not be withheld if prejudice would result to the client. “A lawyer may
not prejudice a client’s rights by withholding property of the client which is
essential to the client’s case.”1 The previous opinion addressed the propriety of
charging a client for copies of his or her file, and the lawyer’s right to withhold
the file when the client fails to pay the copying charges.
“The lawyer who has not been paid for his or her services is
entitled to assert a lien against the file. However, the lawyer’s
interest in getting paid must be subordinate to the rights of the
client. A lawyer may not prejudice a client’s rights by withholding
property of the client which is essential to the client’s case.”2
Similarly, in Ethics Opinion 2003-3, the Committee concluded that a
lawyer must presumptively accord the client access to the entire file upon
termination of the representation.3 As noted in Opinion 2003-3, Rule 1.16(d)
governs the lawyer’s obligation to the client when representation ends. Upon
termination of the representation, a lawyer shall take steps to protect a client’s

1 Ethics Opinion No. 95-6.
2 Ethics Opinion No. 95-6, emphasis added.
3 Ethics Opinion No. 2003-3.

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interest, including surrendering papers and property to which the client is
entitled.4
The considerations addressed in Ethics Opinions 95-6 and 2003-3 are
equally applicable to an expert or investigator’s report. In the committee’s
view, expert or investigator’s reports present particular illustrations of the
general rules noted in the Opinion 95-6 (prejudice to the client is the
paramount concern), and 2003-3 (client is entitled to presumptive access to the
entire file upon termination of representation). Each situation must be
carefully reviewed to determine whether prejudice will result.
The committee envisions certain instances where prejudice to the client
may be readily apparent, but other instances where there is little impact. If the
matter is in the middle of litigation, the client is likely to have an immediate
and paramount need for an expert’s report.5 Similarly, an investigator’s report
may contain information critical to the client’s case.6 In these examples,
prejudice may be readily apparent.
In other situations, withholding the report may inconvenience the client,
but is not likely to result in actual prejudice. For example, a personal injury
lawyer who consults with a physician to determine whether to pursue a case
may be justified in withholding the report if the client fails to pay for it.
Similarly, in a real estate transaction, an alternative appraisal may be readily
obtained. A probate case may need a duplicate inventory. In each of these
examples, it seems again to be readily apparent that prejudice to the client is
unlikely. The client may be inconvenienced by having to pay for an alternate
report, or valuation, but that inconvenience, or added expense, does not
automatically equate to prejudice. In each instance, the lawyer must weigh the
possible prejudice to the client against the lawyer’s right to reimbursement for
the expert’s report.

4 Alaska Rule of Professional Conduct 1.16(d).
5 If the expert’s report was prepared by a retained expert for purposes of

testimony, it may be subject to mandatory disclosure under the Rules of Civil
Procedure, or a court’s pretrial order. Failure to make timely disclosure could
seriously jeopardize the client’s case, or subject the client to potential sanctions.
6 For example, a lawyer may retain an investigator to interview witnesses in a

personal injury case. If the interviews turn up information adverse to the client’s
position, the client may proceed with an imprudent case. Here again, if the matter is
in litigation, the client may be faced with disclosures required by applicable discovery
rules.

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B.

Attorney Work Product Is Problematic

One variation on the “client’s file” deserves additional mention. There are
situations where a lawyer engages an expert to assist in preparation of the
lawyer’s strategic work product. For example, many lawyers prepare
demonstrative aids for use at trial. Sometimes, such aids are simple
posterboards which can easily be duplicated. Another lawyer may commission
a detailed electronic presentation. Other times, the demonstrative aids may be
complex, expensive working models. In some of these instances, the lawyer
may have devoted substantial time and money to preparation of the exhibits.
Such exhibits are extremely problematic for the lawyer examining ethical
questions because they would clearly benefit the client. Whether the absence
of such aids would prejudice the client, however, is the test. No bright line
rules can be pronounced in these instances. In each instance, the lawyer must
look to whether the client will suffer prejudice if essential materials are
withheld.
C.

The Lawyer’s Obligation To Inform

The lawyer’s attempt to withhold an expert or investigator’s report raises
an additional issue not addressed in previous opinions. Rule 1.4 governs a
lawyer’s obligation to communicate with the client:
“(a) A lawyer shall keep a client reasonably informed about
the status of a matter undertaken on the client’s behalf and
promptly comply with reasonable request for information.
(b) A lawyer shall explain the matter to the extent reasonably
necessary to permit the client to make informed decisions
regarding the representation . . .”7
The comment to the model rule provides additional insight:
“The guiding principle is that the lawyer should fulfill
reasonable client expectations for information consistent with a
duty to act in the client’s best interest, and the client’s overall
requirements as to the character of representation. . . .
A lawyer may not withhold information to serve the lawyer’s own
interest or convenience.”

7 Alaska Rule of Professional Conduct 1.4(a) and (b).

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The Committee notes there are circumstances in which a lawyer
may justifiably delay transmission of information to a client. However,
those circumstances are limited to situations where harm may come to
the client or someone else.8
D.

Conclusion

In summary, an expert or investigator’s report is part of the client’s
file. Ethics Opinions 95-6 and 2003-3 control. A lawyer may not
withhold such reports to serve the lawyer’s own interest in getting paid or
reimbursed for the cost of the report if it will prejudice the client.
Whether or not the client has paid for the report, the client’s interests
must be paramount.9 The lawyer’s right to reimbursement for the
expert’s fee must give way to the client’s needs if the material is essential
to the client’s case.
Approved by the Alaska Bar Association Ethics Committee on November
6, 2003.
Adopted by the Board of Governors on January 15, 2004.

8 The example given in the comment allows a lawyer to withhold a psychiatric

diagnosis of a client when the examining psychiatrist indicates that the disclosure
would harm the client. See Alaska Rule of Professional Conduct 1.4, comment,
withholding information.

9 In this Opinion, the Committee assumes the expert or investigators report has
been prepared with the client’s consent, and for the client’s benefit.

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