Does an Illinois lawyer have to give the client the lawyer's own notes and investigative reports from the case file?

Plain-English summary

A lawyer handling a criminal appeal sent paralegal investigators to gather evidence about the client's former wife, whom the client had been convicted of maiming. The client and his family asked for copies of the paralegal's investigative reports. The lawyer raised a good-faith concern that the client, who often acted irrationally, would use the materials to locate and again injure his former wife.

The opinion sorted the materials normally found in a lawyer's file into seven categories and evaluated each separately under Rule 1.4(a) (keeping a client reasonably informed) and Rule 1.15(b) (delivering property the client is entitled to receive). It concluded that things furnished by the client, and the final versions of correspondence, pleadings, and documents prepared in the representation, are within the client's access (though the lawyer need not supply duplicate copies except at the client's reasonable expense). Internal administrative materials, by contrast, are not subject to client access.

For the seventh category, the lawyer's notes, drafts, legal and factual research, and investigative reports prepared for the lawyer's own use, the opinion concluded that the better rule, in the absence of controlling Illinois authority, is that these are the property of the lawyer and generally need not be delivered to the client. It relied on Federal Land Bank of Jackson v. Federal Intermediate Credit Bank for the distinction between the lawyer's finished product (which the client has paid for and may expect to own) and the lawyer's working tools. To the extent prior ISBA Opinions 432, 519, and 641 were inconsistent, the opinion expressly overruled them.

The opinion also concluded that, on these facts, the lawyer had an additional reason to refuse: drawing on the comment to Model Rule 1.4 and the Restatement, it concluded a lawyer may delay or refuse information when the client is likely to react imprudently or when disclosure might harm the client or others. The lawyer remained free to release the materials in the exercise of professional judgment, but the Rules did not require it.

Currency note

This opinion was issued in 1995, before Illinois adopted the 2010 Illinois Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in May 2010 as generally consistent with the 2010 Rules (referring to Rules 1.4 and 1.15(d) and Restatement of the Law Governing Lawyers sections 58 and 20), while noting the specific standards referenced may differ from the 2010 Rules. 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 or requirement mentioned here.

Common questions

Q: Are the lawyer's own notes and investigative reports part of the client's file?

A: The opinion concluded they are the lawyer's property. A lawyer's notes, drafts, internal memoranda, legal research, and factual or investigative materials prepared for the lawyer's own use generally need not be delivered to the client.

Q: What parts of the file is the client entitled to?

A: The opinion concluded the client is entitled under Rule 1.15(b) to property the client furnished, and under Rule 1.4(a) to reasonable access to correspondence, pleadings, and final documents in the file, though the lawyer may charge the reasonable expense of providing additional copies.

Q: Can a lawyer refuse to hand over materials out of concern the client will misuse them?

A: On the facts here, yes. The opinion concluded the lawyer was justified in refusing the investigative materials because of a good-faith concern the client would use them to inflict further harm on his former wife, citing the comment to Model Rule 1.4 and the Restatement.

Q: Does the client's having paid the lawyer's fee make the whole file the client's?

A: No. The opinion adopted the reasoning that the client pays for the lawyer's end product, not the working tools used to reach it, and that the existence of a fiduciary relationship does not by itself determine who owns particular materials.

Background and rules framework

The opinion interpreted Rule 1.4 (keeping a client reasonably informed and complying with reasonable requests for information; Model Rule 1.4) and Rule 1.15 (safekeeping and delivery of client property; Model Rule 1.15). It expressly addressed only the lawyer's duties under the Rules of Professional Conduct, not whether file materials are discoverable as work product in litigation.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.4 (communication) / Illinois Rule 1.4(a)
• Model Rule 1.15 (safekeeping property) / Illinois Rule 1.15(b)

Cases:

• Federal Land Bank of Jackson v. Federal Intermediate Credit Bank, 127 F.R.D. 473 (S.D. Miss. 1989), lawyer's working materials versus end product
• Estate of Johnson, 538 N.Y.S.2d 173 (1989), ownership of file materials

Other opinions cited:

• ABA Formal Opinion No. 93-379 (reasonable expense of copying)
• ABA Informal Opinion No. 1376 (1977)
• District of Columbia Bar Opinion No. 168 (1986)
• ISBA Opinions 432, 519, and 641 (overruled to the extent inconsistent)

See also

• ISBA Ethics Op. 94-14: Returning the File After Discharge
• ABA Formal Op. 471: Surrender of Papers and Property to a Former Client
• CA COPRAC Op. 1992-127: Criminal Defense File Turnover

Source

• Landing page: https://www.isba.org/ethics/opinions/9413