What files must a law firm turn over to a former client, and who pays the copying costs?
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This page answers the general question as of 1992. Ezel answers yours: whether it's allowed on your facts, under the current Massachusetts Rules of Professional Conduct, with citations.
Plain-English summary
The FDIC, claiming to stand in the shoes of a bank that had been a law firm's client, demanded all the firm's files for its work for the bank. The firm offered access and copies but, at its malpractice and title carriers' insistence, refused to surrender the original files, and it questioned whether it had to bear the estimated $5,000 to $10,000 copying cost. The committee answered by mapping the request onto the categories of the then-new DR 2-110(A)(4), leaving the firm to fit particular documents into those categories.
The committee read the rule's direction to "make available" documents the client supplied (subsection (a)) and investigatory or discovery documents for which the client paid out-of-pocket costs (subsection (c)) as requiring the firm to turn over the originals, since the rule's allowance that the firm may keep copies "at its own expense" would otherwise make no sense. For pleadings and other court papers (subsection (b)) and for the firm's work product on a non-contingent matter (subsection (d)), the committee held the rule permits a copying charge unless the client has already paid for the materials, and concluded that the SJC did not intend the rule to create a new rule of substantive contract law about whether paying a fee for services also pays for copies. Whether the client's payment included copying costs was therefore left to the parties' contract and to substantive contract law, which the committee may not decide.
The committee added that the firm need not pay a copying charge for a document more than once, so it owed nothing further for documents it had previously copied and supplied to the bank, leaving open whether any federal law specific to the FDIC would override the rule. It also noted DR 2-110(A)(4)(g), which bars refusing to make file materials available on grounds of nonpayment where retention would unfairly prejudice the client, though it lacked facts to apply that provision. The committee said that, given its reading, parties would be well advised to contract explicitly about copying charges for subsection (b) and (d) materials and for correspondence.
Currency note
This opinion was issued in 1992, before Massachusetts's adoption of the 2015 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: Does a firm have to give a former client the original file or just copies?
A: For documents the client supplied and investigatory materials the client paid for, the committee said the firm must turn over the originals and may keep copies at its own expense, because the rule's wording would otherwise make no sense.
Q: Who pays to copy pleadings and work product?
A: The committee said the rule permits a copying charge unless the client already paid for the materials, and that whether the client's fee included copying costs is a matter of the parties' contract and substantive law, which the committee could not resolve.
Q: Does a firm have to copy the same document twice for free?
A: No. The committee found nothing in the rule requiring a firm to pay a copying charge for a document more than once, so it owed no further copying cost for documents already copied and supplied to the original client.
Q: Can a firm withhold the file because the client has not paid?
A: The committee pointed to DR 2-110(A)(4)(g), which bars refusing to make file materials available on grounds of nonpayment where retention would unfairly prejudice the client, but said it lacked the facts to apply that provision here.
Background and rules framework
The opinion interpreted DR 2-110(A)(4) (an attorney's duty to make a former client's file available on request), corresponding to Model Rule 1.16(d) (surrender of papers and property on termination), with the underlying client-property concerns of Model Rule 1.15. The committee repeatedly declined to resolve the copying-cost question, treating it as substantive contract law outside its remit.
Citations and references
Rules of Professional Conduct:
- Model Rule 1.16(d) / DR 2-110(A)(4) (surrender of the client's file on termination)
- Model Rule 1.15 (safekeeping client property)
Other opinions cited:
- Boston Bar Association Opinion 92-2 (responding to the same inquiry, with a somewhat different reading)
See also
- MA Bar Ethics Op. 96-3: Client confidences in a withdrawal motion
- MA Bar Ethics Op. 95-2: Non-refundable retainers barred
Source
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