Can a lawyer require a client to release malpractice and bar-complaint claims before returning the client's file?

Plain-English summary

The opinion addressed a practice the Disciplinary Board had observed: lawyers requiring a client who wishes to discharge them to sign an agreement releasing the lawyer from all liability, including malpractice claims and State Bar disciplinary complaints, before the client could obtain the file, together with a waiver of any lien the lawyer claimed against the file. The Board concluded the practice is improper.

The Board explained that conditioning return of the file on such a release is an attempt by the lawyer to limit or exonerate the lawyer's individual liability for malpractice, contrary to Canon 6 and Ethical Consideration 6-6, which state that a lawyer should not seek by contract or other means to limit liability to the client for malpractice, and contrary to Directory Rule 6-102, which bars a lawyer from attempting to exonerate or limit that liability. It added that by withholding the file until the client signs the release, the lawyer places personal interests ahead of the client's and fails to exercise independent professional judgment for the client's benefit, contrary to Canon 5 and Ethical Consideration 5-1.

The Board also found the practice potentially prejudices the client in violation of Standard 22(b), which requires a withdrawing lawyer to take reasonable steps to avoid foreseeable prejudice, including delivering the papers and property to which the client is entitled. It connected the conclusion to Formal Advisory Opinion 87-5, under which the ethical duty not to prejudice the client is paramount over the lawyer's lien rights.

Currency note

This opinion was issued in 1996, before the State Bar of Georgia adopted the Georgia Rules of Professional Conduct in 2001, which replaced the Canons of Ethics and Standards of Conduct this opinion construes. The State Bar's headnote states that the conduct at issue is now specifically prohibited by Rule 1.8(h) (limiting liability to a client for malpractice) and maps Standard 22(b) to Rule 1.16(d). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current Rules of Professional Conduct before relying on any specific rule mentioned here.

Common questions

Q: Can a lawyer make a client sign a release to get the file back?

A: No. The opinion concluded that conditioning return of the client's file on a release of claims, including malpractice claims and disciplinary complaints, is improper.

Q: Why is that release improper?

A: The opinion held it is an attempt to limit or exonerate the lawyer's liability for malpractice (Canon 6, EC 6-6, DR 6-102), puts the lawyer's interests ahead of the client's (Canon 5, EC 5-1), and potentially prejudices the client by withholding the file (Standard 22(b)).

Q: What rule covers this conduct now?

A: The State Bar's headnote states the conduct is now specifically prohibited by Rule 1.8(h), which addresses agreements limiting a lawyer's liability to a client for malpractice.

Background and rules framework

The opinion relied on the Georgia Canons of Ethics, Canon 6 and Ethical Consideration 6-6 with Directory Rule 6-102 (no limiting malpractice liability), Canon 5 and Ethical Consideration 5-1 (independent professional judgment for the client), and Standard of Conduct 22(b) (avoiding prejudice on withdrawal). The State Bar's headnote connects the conduct to Rule 1.8(h) and Standard 22(b) to Rule 1.16(d).

Citations and references

Rules of Professional Conduct:

• MR 1.8 / Ga. RPC 1.8(h) (agreements limiting liability to a client for malpractice; the rule the State Bar says now prohibits the conduct)
• MR 1.16 / Ga. RPC 1.16(d) (protecting client interests on termination; analog to former Standard 22(b))

Former rules construed:

• Canon 6, Ethical Consideration 6-6, Directory Rule 6-102; Canon 5, Ethical Consideration 5-1; Standard of Conduct 22(b)

Cases:

• White v. Aiken, 197 Ga. 29 (1943) (client's right to discharge the attorney)

Other opinions cited:

• Georgia Formal Advisory Opinion 87-5 (duty not to prejudice the client paramount over lien rights)

See also

• GA Ethics Op. 87-5: Assertion of Attorneys' Retaining Liens
• GA Ethics Op. 93-4: Transcripts for Indigent Clients After Conviction
• ABA Formal Op. 471: Surrendering the Client File to a Former Client

Source

• Landing page: https://www.gabar.org/handbook?rule=rule499

Original opinion text

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

State Bar of Georgia

Issued by the Supreme Court of Georgia

On January 25, 1996

Formal Advisory Opinion No. 96-1

This opinion relies on the Canons of Ethics, including both Directory Rules and Ethical Considerations, that bear upon matters directly addressed by Rule 1.8(h) . The conduct, which is the subject of this Formal Advisory Opinion, is now specifically and clearly prohibited by Rule 1.8(h) .

For references to Standard of Conduct 22(b), please see Rule 1.16(d) .

For an explanation regarding the addition of headnotes to the opinion, click here .

QUESTION PRESENTED:

The question presented is whether an attorney may require a client, who desires to discharge the lawyer, to enter into an agreement releasing the lawyer for all claims by the client against the lawyer, including any disciplinary complaint with the State Bar, in order to obtain the client's files from the lawyer and a waiver of any claim of lien by the lawyer against such files.

SUMMARY ANSWER:

A lawyer should represent a client competently and should exercise independent professional judgment on behalf of the client by putting the interests of a client ahead of the lawyer's own personal interests. Therefore, a lawyer should not condition the return of a former client's files upon the execution of a release of claims and a release of State Bar disciplinary complaints by the client against the lawyer.

OPINION:

It has been brought to the attention of the State Bar's Disciplinary Board that lawyers are following a practice of requiring a client, who desires to discharge the lawyer, to execute an agreement releasing the lawyer from any liability for claims relating to the lawyer's representation of the client in order for the client to obtain the papers and documents that constitute the client's file. One such agreement includes the following provision:

...it is hereby agreed that [the client] hereby releases and forever discharges [the lawyers]...from all...claims,...including any disciplinary complaint with the State Bar of Georgia...which [the client] ever had or may have [against the lawyers] including but not limited to [the lawyers] representation of [the client] in the above stated matter. ...

[The lawyers]...waive any claim of lien that they have in said matter.

It is apparent from reviewing this provision that the lawyer being discharged is attempting to condition the release of the client's files upon the waiver of any claims, including claims for malpractice and State Bar disciplinary complaints, by the client against the lawyer. This attempt by the lawyer to limit his or her liability for malpractice constitutes a failure to comply with Canon 6 of the Canon of Ethics, which provides that a lawyer should represent a client competently. As clearly explained in Ethical Consideration 6-6:

A lawyer should not seek, by contract or other means, to limit his individual liability to his client for his malpractice. A lawyer who handles the affairs of his client properly has no need to attempt to limit his liability for his professional activities and one who does not handle the affairs of his client properly should not [be] permitted to do so.

The provisions of this Ethical Consideration are emphasized by Directory Rule 6-102:

(A) A lawyer shall not attempt to exonerate himself from or limit his liability to his client for his personal malpractice.

Clearly, the practice of requiring a client, who desires to discharge the lawyer, to execute an agreement as described herein before releasing the client's files is an attempt to exonerate the lawyer from individual liability to his or her client. As such, this practice constitutes a violation of Canon 6 of the Canons of Ethics.

Furthermore, Canon 5 of the Canons of Ethics provides that a "a lawyer should exercise independent professional judgment on behalf of a client."As explained in Ethical Consideration 5-1:

The professional judgment of a lawyer should be exercised, within the bounds of the law, solely for the benefit of his client and free of uncompromising influences and loyalties. Neither his personal interests, the interests of other clients, nor the desires of third persons should be permitted to dilute his loyalty to his client.

By attempting to limit his or her liability for malpractice as a condition of releasing the client's files, the lawyer puts himself or herself into an adversarial relationship with the client. By purposefully withholding papers, documents, and evidence in the client's file until the client agrees to execute an agreement releasing the lawyer from any liability for claims or malpractice, the lawyer's personal interests are placed ahead of the interests of the client. This conduct amounts to a failure to exercise independent professional judgment on behalf of the client in violation of Canon 5 of the State Bar of Georgia's Canons of Ethics.

In addition, by conditioning the return of a client's files and the waiver of any lien that the lawyer might have against such files upon the execution of a release of claims for malpractice and complaints to the State Disciplinary Board, the lawyer has potentially caused prejudice to the client in violation of Standard 22(b) of the Standards of Conduct for the State Bar of Georgia which provides as follows:

A lawyer shall not withdraw from employment until he has taken reasonable steps to avoid foreseeable prejudice to the rights of his client, including delivering to the client all papers and property to which the client is entitled and complying with applicable laws and rules.

By such conduct, the lawyer has also potentially caused prejudice to the client in violation of Formal Advisory Opinion No. 87-5 which provides as follows:

An attorney's ethical obligation not to cause prejudice to his or her client is paramount over rights under the lien statute. Accordingly, an attorney may not to the prejudice of a client withhold the client's papers or properties upon withdrawal as security for unpaid fees.

In summary, the practice of requiring a client, that desires to discharge a lawyer, to execute an agreement, such as described herein, is an attempt by the lawyer to either exonerate himself or herself from claims for malpractice or limit his or her liability to the client for acts of malpractice, and such conduct is improper.