What does a lawyer do with documents a client hands over that may actually belong to the client's former employer?

Plain-English summary

Opinion 242 (adopted September 21, 1993) addressed a lawyer holding documents the client had provided, including internal records of the client's former employer. Some were originals and some copies, and only some arguably belonged to the client. The former employer knew the lawyer or client held some documents and wanted them back; the client asked that documents be returned to him, not the company, and also wanted access to all of them to write a book about the company. The committee was asked whether the lawyer could return the documents to the client, had to turn them over to the company, or should keep them, and whether the client could be given access for the book.

The committee began with the premise that whether the client has any legitimate claim to the documents is a question of fact and law beyond its power to resolve. It then read Rule 1.15 (return of property), Rule 3.4(a) (which, in the District's version, directs a lawyer who receives evidence belonging to someone other than the client to make a good-faith effort to preserve and return it to the owner, subject to Rule 1.6), and Rule 1.6 (confidentiality) together. Assuming that disclosing the documents to the company would reveal a client confidence or secret, the committee concluded that Rules 1.6 and 1.15 require the lawyer to return to the client those documents to which the client has a plausible ownership claim, while advising the client about legal obligations to preserve and not misuse them.

For documents to which the client has no plausible ownership claim, the committee concluded that although Rule 1.6 may bar returning them to the company, it does not bar preserving them, so retaining custody is the proper course, with future disposition governed by court order or agreement of the parties. The lawyer must hold such property separately as a fiduciary under Rule 1.15(a) and may give general notice to the owner if that can be done without revealing protected information. The committee added that permitting the client to use the company's documents for his book might breach the lawyer's fiduciary duty and that Rule 1.2(e) bars assisting conduct the lawyer knows to be criminal or fraudulent, while noting that the related questions of tort and fiduciary liability are legal, not ethical, matters outside its jurisdiction.

Currency note

This opinion was issued in 1993, before the District of Columbia's adoption of the 2007 revisions to the 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: Must a lawyer return to the client documents that may belong to the client's former employer?

A: Only those the client plausibly owns. The committee concluded that, on the client's request, the lawyer should return documents to which the client has a plausible ownership claim, while advising the client about preservation and use obligations.

Q: What about documents the client clearly does not own?

A: Preserve them. The committee concluded that where Rule 1.6 bars returning such documents to the owner, the lawyer should retain custody and let future disposition be set by court order or agreement, rather than return them to the client.

Q: Can the lawyer let the client use the company's documents to write a book?

A: That is doubtful. The committee concluded that permitting such use might breach the lawyer's fiduciary duty to the owner, and that Rule 1.2(e) bars assisting conduct the lawyer knows to be criminal or fraudulent.

Q: Does the lawyer have to notify the owner that it holds the documents?

A: Possibly, if it can be done without breaching confidentiality. The committee concluded the lawyer might give a generalized notice without violating Rule 1.6, so long as the lawyer need not identify the particular documents, but treated this as a fact question.

Background and rules framework

The opinion interpreted D.C. Rule 1.15 (safekeeping property; holding a third person's property as a fiduciary and the duty to deliver property a person is entitled to receive, subject to Rule 1.6), Rule 3.4(a) (which in the District's version expressly directs return of another's evidence to its owner, subject to Rule 1.6), Rule 1.6 (confidences and secrets), and Rule 1.2(e) (a lawyer may not assist conduct the lawyer knows is criminal or fraudulent). The committee noted that the District's Rule 3.4(a) contains return-of-evidence language not found in the ABA Model Rule, so authority construing the Model Rule offered little guidance.

Citations and references

Rules of Professional Conduct:

• D.C. RPC 1.15 / Model Rule 1.15 (safekeeping property; third-party claims)
• D.C. RPC 1.6 / Model Rule 1.6 (confidentiality of information)
• D.C. RPC 3.4(a) / Model Rule 3.4 (fairness to opposing party; return of evidence to its owner)
• D.C. RPC 1.2(e) / Model Rule 1.2 (no assistance to criminal or fraudulent conduct)

Cases:

• Dean v. Dean, 607 So. 2d 494 (Fla. Dist. Ct. App. 1992), cited on a client's confidences in documents
• GTE Prods. Corp. v. Steward, 414 Mass. 721, 610 N.E.2d 892 (1993), cited on a lawyer's exposure for the client's possible breach of fiduciary duty

See also

• DC Ethics Op. 251: Settlement Funds Claimed by a Third Person
• DC Ethics Op. 256: Inadvertent Disclosure
• DC Ethics Op. 293: Disputed Funds Held by a Lawyer

Source

• Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-242