When a Colorado lawyer is fired or withdraws, what parts of the client's file must the lawyer hand over, and can the lawyer charge the client for copies?
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This page answers the general question as of 2018. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
Opinion 104 (adopted April 17, 1999; revised September 15, 2018) addresses a lawyer's duty under Colo. RPC 1.16(d) to surrender the client's file when the representation ends. The Committee frames the lawyer's primary obligation on termination as taking steps reasonably practicable to protect the client's interests, of which surrendering the file is one, and notes that lawyers are consistently disciplined for blanket refusals to surrender the file on demand. The opinion assumes the lawyer has not asserted a retaining lien, which is addressed separately in CBA Formal Opinion 82.
The opinion concludes that the client's entitlement is not defined by traditional concepts of property and ownership but by the client's right to access information related to the representation. The portions of the file to which the client is entitled must be surrendered on demand within a reasonable time, regardless of duplication costs, and include documents in accessible or editable electronic format when such documents already exist and are requested. If the lawyer keeps a copy for the lawyer's own purposes, the lawyer bears that duplication cost; refusing to release the file until the client pays copying charges is improper absent a valid agreement, and any such agreement must be reasonable and must not violate the Rules.
The opinion identifies two categories the client is not entitled to. The first is documents in which a third party (usually another client) has a right to nondisclosure, such as another client's pleading the lawyer used only as a model (though the document the lawyer drafted for the present client must be produced). The second is "practice-related materials," meaning internal firm administration documents like conflicts checks and personnel assignments, and lawyer notes reflecting personal impressions. The Committee adopts the majority view that preliminary drafts, legal research, and research memoranda are not withholdable as practice-related material and must be surrendered; where personal impressions are intertwined with factual information (such as the content of client interviews), the lawyer should produce the factual information, redacting or summarizing the impressions, and should err on the side of production.
In practice
The opinion holds that, under Colo. RPC 1.16(d) as the Committee read it, a Colorado lawyer whose representation has ended must surrender on demand the portions of the file the client reasonably needs to protect the client's interests, bearing the lawyer's own copying costs if the lawyer wants to keep a copy, and may withhold only documents subject to a third party's nondisclosure right and internal practice-related materials. Where the file is requested in editable electronic format and the documents already exist in that format, the opinion treats providing them in that format as a reasonably practicable step the rule requires, while noting the lawyer need not create documents that do not already exist. The opinion notes that disputes over practice-related materials may require in camera review by a court.
Common questions
Q: Does a Colorado lawyer have to give the client the file after being fired?
A: Yes. The opinion concludes that under Colo. RPC 1.16(d) the lawyer must surrender, on demand and within a reasonable time, the portions of the file the client needs to protect the client's interests, and it notes lawyers are consistently disciplined for blanket refusals to do so.
Q: Can the lawyer charge the client for copying the file?
A: Not as a condition of release, absent a valid agreement. The opinion concludes that if the lawyer wants to keep a copy for the lawyer's own purposes, the lawyer bears the duplication cost, and refusing to hand over the file until the client pays copying costs is improper unless a reasonable agreement provides otherwise.
Q: Must the lawyer provide the file in editable electronic format?
A: When those documents already exist in that format and the client requests it, yes. The opinion treats providing existing documents in their maintained editable electronic format as a reasonably practicable step under Rule 1.16(d), but says the lawyer is not obligated to create documents that do not already exist.
Q: What can the lawyer keep?
A: Two narrow categories. The opinion identifies documents in which a third party has a nondisclosure right (such as another client's pleading used only as a model) and internal practice-related materials like conflicts checks, personnel assignments, and notes reflecting the lawyer's personal impressions; even then, factual information intertwined with impressions should be produced, redacted or summarized.
Q: Are drafts and legal research part of the file the client gets?
A: Under the view the opinion adopts, yes. The Committee agrees with the majority approach that preliminary drafts, legal research, and research memoranda must be surrendered and are not withholdable practice-related material.
Background and rules framework
The opinion interprets Colo. RPC 1.16(d), which requires a lawyer on termination to take steps reasonably practicable to protect the client's interests, including "surrendering papers and property to which the client is entitled," while allowing the lawyer to "retain papers relating to the client to the extent permitted by law." It reads that duty alongside Colo. RPC 1.16A (client-file retention) and its comment defining the "file," Colo. RPC 1.0(b-1) (definition of "document"), and Colo. RPC 1.15 (safekeeping of client property). It distinguishes the separate question of a retaining lien, which the Committee analyzed in CBA Formal Opinion 82.
Citations and references
Rules of Professional Conduct:
- Colo. RPC 1.16(d) / Model Rule 1.16 (declining or terminating representation; surrender of file)
- Colo. RPC 1.16A (client-file retention)
- Colo. RPC 1.15(a) / Model Rule 1.15 (safekeeping client property)
- Colo. RPC 1.0(b-1) (definition of "document")
- Colo. RPC 1.17(c) (sale of law practice)
Cases:
- People v. Garrow, 35 P.3d 652 (Colo. 2001), client's right to prompt delivery of the file on termination
- Apa v. Qwest Corp., 402 F. Supp. 2d 1247 (D. Colo. 2005), Rule 1.16(d) requires surrender without additional cost to the client
- In re Sage Realty Corp. v. Proskauer Rose Goetz & Mendelsohn, L.L.P., 91 N.Y.2d 30 (1997), scope of a client's access to the file
Other opinions cited:
- ABA Formal Op. 15-471 (2015): surrender of papers and property to a former client
- ABA Informal Op. 1376 (1977): a lawyer's internal notes and memoranda
- D.C. Bar Op. 357 (2012): former-client records maintained in electronic form
- State Bar of Cal. Formal Op. 2007-174: form of returned client materials
- CBA Formal Op. 82: assertion of an attorney's retaining lien
See also
- ABA Formal Op. 471: Surrendering the Client File
- CBA Formal Op. 110: Charging Lien and Security Interest
- AlaBar Op. 1990-92: Disclosure of File Contents
Source
- Landing page: https://www.cobar.org/ethicsopinions
- Original PDF: https://www.cobar.org/Portals/COBAR/repository/ethicsOpinions/FormalEthicsOpinion_104_2011.pdf
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