Ezel / Ethics Opinions / ALASKABAR

Does a lawyer have to give a former client the original file, or can the lawyer keep the original and give a copy?

Short answer The original. The opinion concludes the file belongs to the client, so the lawyer must provide the original file (not a copy) to the client or new counsel on request; the lawyer may keep a copy at the lawyer's own expense.
Bar
ALASKABAR
Issued
January 27, 2011
Source
View Original PDF

Apply this to your situation

This page answers the general question as of 2011. Ask about yours and see what the current Alaska Rules of Professional Conduct say for your facts, with citations.

Currency note: this opinion is from 2011
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.
How much weight this carries: Alaska Bar Rule 15(a) names ethics opinions adopted by the Board of Governors, alongside the Alaska Rules of Professional Conduct, among the standards of conduct for Alaska lawyers. Source.
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 on this page as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

The Committee was asked whether, when a former client asks for his file, the lawyer must provide the original rather than a copy. It concludes the answer is yes: the file belongs to the client, and the lawyer must provide the original file (not a copy) to the client or the client's new attorney on request.

The opinion builds on prior Opinion 95-6, which stated that the client's original files are the property of the client and that a lawyer must make available all papers and property to which the client is entitled, may not condition their release on payment for copying, and may not charge the client for copying the lawyer's own copy. The Committee makes explicit what 95-6 implied: the lawyer may make a copy for the lawyer's own purposes, at the lawyer's expense, but must hand over the original to the client or new counsel on request. To the extent earlier opinions might have suggested the lawyer could keep the original and give the client a copy, the Committee disavows that suggestion.

The opinion sets several boundaries. It does not change which materials may be withheld entirely (for example, documents that prior opinions allow a lawyer to keep, or materials a statute or court rule bars disclosing directly to a client). It imposes no new file-maintenance obligations; the point is only that the lawyer must produce the original file as it exists when requested. And it does not modify Opinion 2008-1, which allows electronic retention: if a law office's routine practice is to scan closed-file materials to disc and discard the paper, producing only the disc satisfies this opinion when that is all the lawyer has retained.

In practice

Under this opinion, as the Alaska rules stood at the time, when a former client requests the file, the lawyer must turn over the original file as it then exists, not a copy, to the client or new counsel, and may not condition release on payment for copying. The opinion lets the lawyer keep a copy at the lawyer's own expense. It leaves intact the separate rules on which materials may be withheld entirely and the statutes or court rules that bar disclosing certain materials directly to a client, and it preserves Opinion 2008-1, so a lawyer who has lawfully retained only a scanned electronic version may produce that.

Common questions

Q: Can a lawyer keep the original file and give the former client a copy?

A: No. The opinion concludes the file belongs to the client, so the lawyer must provide the original to the client or new counsel on request, and disavows any earlier suggestion otherwise.

Q: Can the lawyer charge the client for copying the file?

A: No. The opinion, following Opinion 95-6, says the lawyer may not condition release on payment for copying and may not charge the client for the lawyer's own copy.

Q: Does the lawyer still get to keep anything?

A: Yes. The opinion lets the lawyer make and keep a copy for the lawyer's own purposes at the lawyer's own expense, and it does not change which materials may be withheld entirely.

Q: What if the file is only kept electronically?

A: The opinion preserves Opinion 2008-1: if the lawyer's routine practice was to scan and discard the paper, producing the electronic version (for example, a disc) satisfies the rule when that is all the lawyer retained.

Background and rules framework

The opinion interprets the lawyer's obligations on termination under Alaska Rule of Professional Conduct 1.16(d) (analog of Model Rule 1.16(d)) and the principle that the client's file is the client's property. It builds on the Committee's prior Opinions 95-6, 2003-3, 2004-1, and 2008-1.

Citations and references

Rules of Professional Conduct:

  • Alaska RPC 1.16(d) (protecting client interests on termination)

Statutes and rules:

  • AS 12.61.120(a); Alaska Crim. R. 16(d)(3) (limits on direct disclosure to a client)

Other opinions cited:

  • Alaska Ethics Opinions 95-6, 2003-3, 2004-1, 2008-1

See also

Source

Original opinion text

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

ALASKA BAR ASSOCIATION
ETHICS OPINION NO. 2011-1
MUST A LAWYER PROVIDE THE ORIGINAL FILE TO A FORMER CLIENT ON REQUEST, RATHER THAN A COPY?

QUESTION PRESENTED
If a former client asks a lawyer to provide his original file to him or to his new attorney, must the lawyer provide the original file rather than a copy? CONCLUSION Yes. The file belongs to the client, and the lawyer must provide the original file, rather than a copy, to the client or the client’s new attorney, if the client requests. DISCUSSION Previous opinions address a lawyer’s obligation to provide materials from his or her file to a former client, when the client requests.1 These opinions focus principally on which materials in a file must be provided, and which if any may be withheld. But an earlier opinion, Ethics Opinion No. 95-6 also provides an answer to the question that most recently has been asked:
[T]he client’s original files are the property of the client. Accordingly, a lawyer must make available to his or her client all papers and property to which the client is entitled, and may not make receipt of them contingent upon payment for copying. . . . A lawyer may not charge the client for making a copy of the original documents for his or her own purposes. The Committee now reiterates explicitly what is implicit in Ethics Opinion 95-6: The lawyer may make a copy for his or her own purposes, at the lawyer’s own expense, but the lawyer must provide the original file to the client or the client’s new counsel if requested. 1

See Ethics Opinion No. 2003-3 (lawyer need not disclose documents when disclosure would violate a duty to a third party, and need not disclose documents intended only for internal law office review and use, such as a preliminary assessment of the legal or factual issues in the case, unless non-disclosure would significantly prejudice the client); Ethics Opinion No. 2004-1 (lawyer may not withhold a report of an expert or an investigator, if withholding it would prejudice the client).

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To the extent that previous opinions from this Committee may inadvertently suggest that the lawyer could keep the original and give the client the copy,2 the Committee disavows that suggestion. This opinion does not modify any prior opinion with respect to which materials in a file may be withheld completely.3 Neither does this opinion modify the obligations imposed by statute or court rule not to disclose certain materials directly to a client.4 This opinion also does not impose any new obligations on the attorney for file maintenance. The point is simply that, when a client requests his or her file, the lawyer must provide the original file as it exists at that time, rather than a copy of the file that then exists (subject, as noted above, to rules and statutes that permit or require the lawyer not to provide certain materials at all). Finally, this opinion does not modify Ethics Opinion No. 2008-1, which authorizes lawyers to maintain certain materials electronically. If the routine practice of a law office in accordance with Ethics Opinion No. 2008-1 is to save most portions of closed files by scanning the materials to CDs, for example, and then discarding the papers, the lawyer would not violate this opinion by producing only the CD if the CD is all that the lawyer has retained at the time the file is requested by the former client. Approved by the Alaska Bar Association Ethics Committee on December 2, 2010. Adopted by the Board of Governors on January 27, 2011.

2

See, e.g., Ethics Opinion No. 2003-3 (framing the question as whether the lawyer must “provide a copy of everything in the file to the client”); Ethics Opinion No. 2004-1 (framing the question as whether the lawyer may “withhold a copy of an expert or investigator’s report”). 3

See, e.g., Ethics Opinion No. 2003-3 (giving examples of documents in a file that a lawyer need not provide to a client who requests his file). 4

See, e.g., AS 12.61.120(a); Alaska Crim. R. 16(d)(3).

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