When a client discharges an Illinois lawyer and demands all the old files, who pays for the copies and what must be returned?

Plain-English summary

A lawyer had served as village attorney for thirty years before retiring and turning active files over to a successor. The village administrator then demanded all files, active and inactive, most of which were in storage commingled with files of the lawyer's other clients. The lawyer considered the demand overly broad, and the administrator offered to send personnel to help sort and pull the relevant files.

The opinion treated the situation as a withdrawal governed by Rule 1.16(d), which requires a lawyer to deliver all papers and property to which the client is entitled. Because no fee was claimed, no retaining lien was involved. Building on the companion Opinion No. 94-13, the opinion concluded the client is entitled under Rule 1.15(b) to the return of all materials it provided, and the duty extends to both active and inactive files.

On cost, the opinion concluded that all original papers the client delivered must be returned, that the lawyer may make copies for itself at its own expense, and that for other file material to which the client has access (including copies of documents the client already received), the lawyer may keep the originals and provide copies at the client's expense. The opinion concluded a lawyer is not required to act as a storage facility and is entitled to the reasonable expense of retrieving stored files and copying.

On the confidentiality question, the opinion concluded that allowing the village's personnel to sort through stored files would violate Rule 1.6(a), because those files contain confidences and secrets of other clients (names, addresses, subject matter), and the lawyer would not have every affected client's consent.

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, 1.6, 1.15, and 1.16), 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 Treat this page as historical context, not current guidance.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: When a client fires the lawyer, must the lawyer hand over inactive (closed) files too?

A: Yes. The opinion concluded the client's right to the return of its own materials and to access other file material extends to both active and inactive files.

Q: Who pays to copy the file?

A: The opinion concluded original papers the client provided must be returned, and the lawyer may keep copies at its own expense. For other material the client is entitled to access, the lawyer may keep the originals and provide copies at the client's expense, including the reasonable expense of retrieving files from storage.

Q: Can the client send its own staff to dig through the lawyer's storage to find the files?

A: The opinion concluded no, where the storage contains files of other clients. Letting the client's personnel sort through them would reveal other clients' confidences and secrets in violation of Rule 1.6(a) absent each affected client's consent.

Background and rules framework

The opinion interpreted Rule 1.16(d) (delivering papers and property on termination; Model Rule 1.16), Rule 1.15(b) (return of client property; Model Rule 1.15), Rule 1.4 (reasonable access to file material; Model Rule 1.4), and Rule 1.6(a) (confidences and secrets of other clients; Model Rule 1.6). It applied the category-by-category framework set out in the companion Opinion No. 94-13.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.16 (declining or terminating representation) / Illinois Rule 1.16(d)
• Model Rule 1.15 (safekeeping property) / Illinois Rule 1.15(b)
• Model Rule 1.4 (communication) / Illinois Rule 1.4
• Model Rule 1.6 (confidentiality) / Illinois Rule 1.6(a)

Other opinions cited:

• ISBA Opinion No. 94-13 (categories of file material; cost of copies)

See also

• ISBA Ethics Op. 94-13: A Lawyer's File Versus the Client's File
• ABA Formal Op. 471: Surrender of Papers and Property to a Former Client
• CA COPRAC Op. 2007-174: Electronic Versions of the Client File on Termination

Source

• Landing page: https://www.isba.org/ethics/opinions/9414