After a client fires a lawyer, can the lawyer charge a fee to copy the client's file before handing it over?

Plain-English summary

The Committee treated this question as an extension of KBA E-235, which held that a client who discharges a lawyer is entitled to receive what he paid for and the return of what he delivered to the lawyer, and that a conscientious lawyer should not withhold any item reasonably anticipated to be useful and to which the client is entitled, while recognizing that the lawyer's work-product privilege protects work product from being turned over.

On the duplication charge, the opinion concluded "Qualified yes." It cautioned that where the cost of duplication was already included in the fee by express or implied contract, it would be improper to charge a second time; that the discharged lawyer should not charge a fee disproportionate to the actual cost of duplication; and that charging a disproportionate fee in retaliation for being discharged would obviously be unethical. The Committee therefore concluded that a discharged lawyer may charge the former client for the actual costs of duplicating the file, provided the fee is not disproportionate to the actual cost, and noted that for indigent criminal defendants the provisions of KRS 31.110(1)(b) and KRS 31.200 might apply.

Currency note

This opinion was issued in 1984 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. 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 Treat this page as historical context, not current guidance.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 before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a fired lawyer charge to copy the client's file?

A: Under this opinion, qualified yes, for the actual cost of duplication, provided the charge is not disproportionate to that cost.

Q: When would such a charge be improper?

A: The opinion said it is improper to charge again where copying costs were already covered by the fee, and unethical to charge a disproportionate amount, especially in retaliation for the discharge.

Q: Does the client get the lawyer's work product too?

A: The opinion, following KBA E-235, recognized that the lawyer's work-product privilege protects work product, which need not be turned over to the client on discharge.

Background and rules framework

The opinion applied the former Code's reasonable-fee provision, DR 2-106, in the context of returning a discharged client's file, and noted the indigent-defense statutes KRS 31.110(1)(b) and KRS 31.200. The modern analogs are Model Rule 1.16(d) (on termination, surrendering papers and property to which the client is entitled) and Model Rule 1.5 (reasonable fees and expenses). The analysis turned on charging no more than the actual, non-duplicative cost of copying.

Citations and references

Rules of Professional Conduct:

• DR 2-106 (former Code)
• MR 1.16(d) (return of file on termination); MR 1.5 (fees and expenses)

Statutes:

• KRS 31.110(1)(b); KRS 31.200 (indigent criminal defendants)

Other opinions cited:

• KBA E-235 (return of client's file and property on discharge)

See also

• KBA Ethics Op. E-395: File Retention in Fee Disputes
• KBA Ethics Op. E-405: When a Sole Practitioner Dies

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-280.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-280
Issued: January 1984

This opinion was decided under the Code of Professional Responsibility,
which was in effect from 1971 to 1990. Lawyers should consult the current
version of the Rules of Professional Conduct and Comments, SCR 3.130
(available at http://www.kybar.org), before relying on this opinion.

Question:

May a lawyer charge a fee for duplication of a client's file after the lawyer
has been discharged?

Answer:

Qualified yes.

References:

KBA E-235; KRS 31.200; KRS 31.110(1)(b).
OPINION

This question is an extension of KBA E-235 in which the committee held that the
client who discharges his lawyer is entitled to receive what he has paid for and the return of
what he has delivered to the lawyer and that the conscientious lawyer should not withhold
from the client any item which could reasonably be anticipated to be useful to the client and
to which the client is entitled to receive. The Committee decided, however, that the
lawyer's work product privilege protects a lawyer from turning over his work product and
such work product need not be given to the client in the event of discharge.
In Answering the question of whether a lawyer may charge a fee for duplication of
a client's file after he has been discharged, it should be noted that in any instance in which
a lawyer has included cost of duplication by express or implied contract in the fee, it would
be improper for the discharged lawyer to then charge a second time for any duplication of
documents. Likewise, the discharged lawyer should not charge a fee that is
disproportionate to the actual cost of duplication. It would obviously be unethical for a
lawyer to charge a disproportionate fee for duplication in retaliation for being discharged
by the client.
It is, therefore, the opinion of the Committee that a discharged lawyer may charge
his former client for the actual costs involved in the duplication of his file, provided the
lawyer does not charge a fee disproportionate to the actual cost for such duplication. It
should also be noted that in the case of indigent criminal defendants, the provisions of
KRS 31.110 (l)(b) and KRS 31.200 might apply.

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the
Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530
(or its predecessor rule). The Rule provides that formal opinions are advisory only.