Can a Minnesota lawyer charge a former client for copying their file or hold the file for unpaid fees?

Plain-English summary

The opinion first defines what counts as "client files, papers and property," whether printed or electronically stored. It includes all papers and property the client provided; all pleadings, motions, discovery, memoranda, and other litigation materials that were executed and served or filed, regardless of payment; all correspondence, regardless of payment; and all items for which the lawyer advanced costs and expenses, such as depositions, expert opinions, business records, and witness statements.

The opinion then states what is excluded: pleadings, discovery, motion papers, memoranda, and correspondence that were drafted but not sent or served if the client has not paid for the drafting; and, in non-litigation settings, drafted but unexecuted documents such as estate plans, title opinions, articles of incorporation, contracts, and partnership agreements where the client has not paid for the drafting.

On charges and return, the opinion provides that a lawyer who has withdrawn or been discharged may charge a former client for copying or electronically retrieving the client's files only if the client agreed in writing to the charge before termination, and the charge must be reasonable; charges that substantially exceed a commercial copy service's are normally unreasonable. A lawyer may not condition the return of client files on payment of copying costs or of the lawyer's fee, citing Rule 1.16(g). A lawyer may withhold documents that are not client files until the fee is paid, unless the client's interests would be substantially prejudiced (for example, by an expiring statute of limitations or other deadline), and a lawyer who withholds such documents for nonpayment may not then claim the fees incurred in preparing them.

In practice

Under this opinion, as it stood when last amended, a Minnesota lawyer may not condition the return of a client's files, papers, and property on payment of the lawyer's fee or of copying costs. The opinion permits a reasonable copying charge only where the client agreed to it in writing before termination. It permits withholding documents that are not client files for unpaid fees, but not where doing so would substantially prejudice the client, such as where a statute of limitations or other deadline is about to expire.

Common questions

Q: Can a lawyer hold a client's file until the client pays the bill?

A: No. The opinion states a lawyer may not condition the return of client files, papers, or property on payment of copying costs or of the lawyer's fee, citing Rule 1.16(g).

Q: Can a lawyer charge a former client for copying the file?

A: Only if the client agreed in writing to the charge before termination, and the charge is reasonable. The opinion states charges substantially exceeding a commercial copy service's are normally unreasonable.

Q: Do drafted-but-unsent documents count as the client's file?

A: Generally no, if the client has not paid for drafting them. The opinion excludes unsent pleadings and, in non-litigation settings, unexecuted documents like estate plans or contracts where the client has not paid for the drafting.

Q: Can a lawyer ever withhold documents for unpaid fees?

A: The opinion allows withholding documents that are not client files until the fee is paid, unless that would substantially prejudice the client, and it bars the lawyer from then claiming the fees for preparing the withheld documents.

Background and rules framework

The opinion applies Rule 1.16(g) of the Minnesota Rules of Professional Conduct, part of Rule 1.16 (the analog of Model Rule 1.16 on declining or terminating representation), which governs a lawyer's handling of client files and property on termination. It defines the scope of client files and the limited circumstances in which a lawyer may charge for copies or withhold materials. It was adopted in 1989 and amended in 2010.

Citations and references

Rules of Professional Conduct:

• MR 1.16 (declining or terminating representation)
• Minnesota RPC 1.16(g) (return of client files and property on termination)

See also

• Alabama Ethics Op. 1986-02: Attorney Must Provide Copies of Client Files
• ABA Ethics Op. 471: Surrender of Papers and Property to a Former Client
• Minnesota LPRB Ethics Op. 11: Retaining Liens on Client Files

Source

• Landing page: https://lprb.mncourts.gov/lawyers-professional-responsibility-board-opinions/
• Original PDF: https://lprb.mncourts.gov/wp-content/uploads/2024/10/Opinion-13_compressed.pdf

Original opinion text

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

OPINION NO. 13
COPYING COSTS OF CLIENT FILES,
PAPERS AND PROPERTY
Client files, papers and property, whether printed or electronically stored, shall include:
1.

All papers and property provided by the client to the lawyer.

2.

All pleadings, motions, discovery, memorandums, and other litigation materials
which have been executed and served or filed regardless of whether the client
has paid the lawyer for drafting and serving and/or filing the document(s).

3.

All correspondence regardless of whether the client has paid the lawyer for
drafting or sending the correspondence.

4.

All items for which the lawyer has advanced costs and expenses regardless of
whether the client has reimbursed the lawyer for the costs and expenses
including depositions, expert opinions and statements, business records, witness
statements, and other materials which may have evidentiary value.

Client files, papers and property, whether printed or electronically stored, shall not include:
1.

Pleadings, discovery, motion papers, memoranda and correspondence which
have been drafted, but not sent or served if the client has not paid for legal
services in drafting or creating the documents.

2.

In non-litigation settings, client files, papers and property shall not include
drafted but unexecuted estate plans, title opinions, articles of incorporation,
contracts, partnership agreements, or any other unexecuted document which
does not otherwise have legal effect, where the client has not paid the lawyer for
the services in drafting the document(s).

A lawyer who has withdrawn from representation or has been discharged from
representation, may charge a former client for the costs of copying or electronically retrieving
the client's files, papers and property only if the client has, prior to termination of the lawyer's
services, agreed in writing to such a charge. Such copying charges must be reasonable.
Copying charges which substantially exceed the charges of a commercial copy service are
normally unreasonable.

A lawyer may not condition the return of client files, papers and property on payment of
copying costs. Nor may the lawyer condition return of client files, papers or property upon
payment of the lawyer's fee. See Rule 1.16(g), Minnesota Rules of Professional Conduct.
A lawyer may withhold documents not constituting client files, papers and property until the
outstanding fee is paid unless the client's interests will be substantially prejudiced without the
documents. Such circumstances shall include, but not necessarily be limited to, expiration of a
statute of limitations or some other litigation imposed deadline. A lawyer who withholds
documents not constituting client files, papers or property for nonpayment of fees may not
assert a claim against the client for the fees incurred in preparing or creating the withheld
document(s).
Adopted: June 15, 1989.
Amended: January 22, 2010.