Can an Alaska lawyer refuse to return a client's file until the client pays the copying charges?

Plain-English summary

The Committee was asked whether a lawyer may refuse to return a client's file unless the client pays the copying charges. The opinion concluded that the client's files may not be withheld if prejudice would result to the client.

The opinion reasoned that copy charges may be billed only if the fee agreement specifically provides for them, disclosed at the outset under Rule 1.5(b); absent that agreement the lawyer may not charge the client for copying the file. Under Rule 1.15 the lawyer must safeguard and promptly return client property, and the original files are the property of the client. A lawyer may not make their return contingent on payment for copying, and may not charge the client for copies the lawyer makes for the lawyer's own benefit (such as malpractice protection or a forms bank).

The opinion read Rule 1.16(d) and Alaska's statutory attorney's lien (A.S. 34.35.430) together with Miller v. Paul, 615 P.2d 615 (Alaska 1980). It concluded that while a lawyer who has not been paid may assert a lien against the file, that interest is subordinate to the client's rights; a lawyer may not prejudice a client's rights by withholding property essential to the client's case, and economic duress may not be used to prevent a client from terminating the relationship.

Currency note

This opinion was issued in 1995, before Alaska's adoption of the 2009 revisions to the Alaska Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Did the opinion let an Alaska lawyer keep the file until the client paid copying costs?

A: No, not where withholding would prejudice the client. The opinion concluded the original file is the client's property and its return could not be made contingent on payment for copying.

Q: Could the lawyer ever charge the client for copying the file?

A: At the time, only if the fee agreement specifically set out that understanding, disclosed at the outset under Rule 1.5(b), and the copying was to benefit the client. The opinion treated copies made for the lawyer's own benefit as not chargeable to the client.

Q: What about the lawyer's right to a lien for unpaid fees?

A: The opinion recognized a statutory attorney's lien but, relying on Miller v. Paul, concluded the lawyer's interest in payment is subordinate to the client's rights, so a lien could not be used to prejudice the client's case.

Background and rules framework

The opinion interpreted the Alaska Rules of Professional Conduct on safekeeping and returning client property and on fee disclosure: Rule 1.15 (Model Rule 1.15, safekeeping property), Rule 1.16(d) (Model Rule 1.16, protecting client interests on termination), and Rule 1.5(b) (Model Rule 1.5, communicating the basis of the fee). It read these against the Alaska statutory attorney's lien, A.S. 34.35.430, and the Alaska Supreme Court's balancing of the attorney's lien against the client's need for the file in Miller v. Paul.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.15 / Alaska RPC 1.15 (safekeeping and returning client property)
• Model Rule 1.16 / Alaska RPC 1.16(d) (protecting client interests on termination)
• Model Rule 1.5 / Alaska RPC 1.5(b) (communicating the basis of the fee)

Statutes:

• A.S. 34.35.430 (Alaska statutory attorney's lien)

Cases:

• Miller v. Paul, 615 P.2d 615 (Alaska 1980), balancing the attorney's retaining lien against the client's need for the file

Other opinions cited:

• Pennsylvania Ethics Op. 89-76 (1989); Philadelphia Bar Ops. 80-32, 86-154; Virginia Bar Op. 1171 (1989)

See also

• Alaska Ethics Op. 2004-1: Withholding Expert Reports for Nonpayment
• Alaska Ethics Op. 2003-3: Documents in the Client File on Termination
• ABA Formal Op. 02-427: Security Interest to Secure a Fee

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/95-6.pdf

Original opinion text

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

ALASKA BAR ASSOCIATION
ETHICS OPINION NO. 95-6
Attorney’s Right To Withhold A Client’s File
Unless The Client Pays For Copying Files
The Committee has been asked to give an opinion as to whether it is proper
for an attorney to refuse to return a client's file unless the client pays the copying
charges.
It is the opinion of the Committee that the client's files may not be withheld
if prejudice would result to the client.
It is fundamental to the attorney-client relationship that the lawyer must
disclose to the client the basis on which the client is to be billed for both
professional time and any other charges, including photocopy expenses. This
disclosure should be made at the outset of the representation. [Rule 1.5(b).]
Unless the lawyer's fee agreement specifically sets forth the understanding of the
parties regarding copy charges, the lawyer may not charge the client for copying
the file.
The circumstance in which this question will arise is typically when the
relationship between lawyer and client has ended. In that event, the interests of
lawyer and client may be diverging. The client may be dissatisfied with the
lawyer's work and may have discharged him or her, and be seeking new counsel.
The lawyer who has been discharged, rightly or wrongly, may feel threatened and
may not have been paid. Under these circumstances, the client's interests must
be paramount.
Pursuant to Rule 1.15, the lawyer has an obligation to hold property of a
client separately. Such property must be identified and appropriately
safeguarded. Further, the client's property must be promptly returned upon
request. It is the Committee's opinion that the 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. See Pa. Ethics Op. 89-76
(1989) (files of client).

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A lawyer may not charge the client for making a copy of the original
documents for his or her own purposes. There are circumstances in which the
lawyer who has been discharged may wish to retain copies of all or some part of
the client's file. A lawyer may not charge for the duplication costs of a client's file
if the duplication is to protect the attorney from a malpractice or related claim or
to provide forms for a research bank. In those instances, the copies are made not
for the client's benefit, but for the lawyer's. The Committee believes it is improper
to charge the client for such costs. See Philadelphia Bar Ops. 80-32, 86-154
(111386) (1984) (ABA/BNA LAWYER'S MANUAL ON PROFESSIONAL CONDUCT § 901:7510 at
50 (1984)); Virginia Bar Op. 1171 (21389) (1989) (BNA MANUAL § 901:8749 at 25
(1989)).
Further, 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
the 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 rules provides insight as well:
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.

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Thus, a lawyer must surrender the client's papers and other property unless the
lawyer is permitted by law to retain the papers as a matter of law.
Alaska law provides for a statutory attorney's lien. A.S. 34.35.430
provides:
Attorney's Lien. (a) An attorney has a lien
for compensation, whether specifically
agreed upon or implied, as provided in this
section.
(1) First, upon the papers of the
clients that have come into the possession
of the attorney in the course of the
professional employment;
....
In Miller v. Paul, 615 P.2d 615 (Alaska 1980) , the Alaska Supreme Court shed
some light on the balancing required between the attorney's right to
compensation and the client's need for the file. The facts were as follows.
Attorney Miller was retained by Mary Paul to represent her in the probate of her
husband's estate and in prosecuting a wrongful death action. A written fee
agreement was executed providing for a contingent fee for services in the wrongful
death claim. Apparently due to a possible conflict of interest on Miller's part,
Mary Paul terminated Miller's services. Miller then submitted a billing for his
services rendered. Miller filed a notice of attorney's lien covering both a retaining
lien on papers in his possession and a charging lien on any recovery ultimately
received by Paul. Paul substituted counsel, McMurtray, who moved for an order
requiring Miller to turn over the files to him. The superior court granted the
motion, indicating that Miller was adequately protected by the charging lien. 615
P.2d at 617.
Paul contends that Miller's statutory and
contractual liens must give way to an
attorney's ethical duty not to prejudice a
client's case by withholding access to
relevant materials in the attorney's
possession. Attorneys must conform to

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high ethical standards regardless of
whether statutory rights permit contrary
conduct. . . . [A] question is presented as to
whether ethical considerations require that
a lawyer return the client's files. Paul had
the right under the contract to fire her
attorney without cause. An attorney should
have the right to some protection, assuring
payment of reasonable fees earned. A
balancing of those interests is required in
determining what security should be
required for relinquishment of the
attorney's retaining lien.
If the client does not initiate the
withdrawal, or if there is just cause for the
client to discharge the attorney, ethical
considerations mandate return of the files.
Even where the client terminates the
relationship without just cause, the court
must consider the value of the files to the
client's case in determining the adequacy of
the security to be requested. . . . .
Economic duress may not be utilized to
prevent a client from exercising the right to
terminate the relationship with the
attorney.
Id. at 619-20.
The Committee recognizes that an attorney's right to assert a lien to secure
payment of his or her right to a professional fee is primarily a question of law.
While the court in Miller was not specifically concerned with copying charges, the
considerations appear to be the same. 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.

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In summary, the question of whether it is proper for a lawyer to refuse to
return a client's file unless the client pays for the copying charges is fraught with
potential conflicts. The circumstances in which this question will arise are
typically when the relationship between the lawyer and client has ended. In that
event, the interests of lawyer and client may be diverging. Regardless of the
reason for the lawyer's discharge, the client's interests must be paramount. If the
lawyer's fee agreement expressly provides the client will pay copying charges, the
Committee believes it is acceptable for the client to be charged for copying the file
if it is to benefit the client's interests. However, the client should not be charged
for photocopying the client's file if duplication is for the lawyer's benefit rather
than the client's. Assuming the law permits a lawyer to assert a lien for fees, care
must be taken to assure that imposition of the lien will not prejudice important
rights or interests of the client. The client's interests must always be paramount.
Approved by the Alaska Bar Association Ethics Committee on September 7, 1995.
Adopted by the Board of Governors on October 20, 1995.

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