May a firm give a departing lawyer a shared closed file at the request of only one jointly represented client?

Plain-English summary

The departing lawyer and firm used a single closed file for two jointly represented clients. Only one client directed the firm to transfer the file to the departing lawyer. The opinion permits release of a copy to that client or to the departing lawyer at that client’s direction while the firm retains the original under Rule 4-1.22.

The opinion relies on Formal Opinion 115 for the client’s ownership of the file and Rule 4-1.16(d) for surrender of papers and property at termination. It says the Rules do not decide who pays to copy the file in this situation, although a lawyer or firm making a copy for its own use or protection bears that cost.

If the two clients dispute the file, Rule 4-1.15(e) requires distribution of the undisputed part and separate retention of the disputed part until resolution. The opinion says the firm may file an interpleader action if the dispute is not resolved within a reasonable time.

In practice

For the stated one-client request, the firm may send a copy while retaining the original joint file. A later dispute between the clients changes the handling of the contested portion under Rule 4-1.15(e).

Common questions

Q: Can one client direct that a copy go to the departing lawyer?

A: Yes. The opinion allows a copy to be released as that client directs while the firm maintains the original.

Q: Who pays to copy the file?

A: The Rules do not resolve that cost for these circumstances. The opinion says a lawyer or firm making a copy for its own use or protection bears that cost.

Q: What happens if the clients dispute part of the file?

A: The firm must distribute the undisputed portion and hold the disputed portion separately until the dispute is resolved.

Background and rules framework

Rule 4-1.16(d) addresses surrender of client property after representation ends. Rule 4-1.22 governs storage of the original file; Rule 4-1.15(e) governs disputed and undisputed portions.

Citations and references

Missouri Rules of Professional Conduct:

• Rules 4-1.16(d), 4-1.22, and 4-1.15(e)

Other opinions cited:

• Missouri Formal Opinion 115
• Missouri Informal Opinions 990152 and 990150

See also

• Missouri Formal Op. 115: Client File
• Missouri Informal Op. 2019-03: Departing Lawyer Client Files

Source

• Landing page: https://mo-legal-ethics.org/informal-opinion/2015-10/

Original opinion text

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

Question 1: Where an attorney is departing a law firm and has jointly represented two clients in a matter using a single file, and only one of the clients directs the firm to transfer the closed file to the departing attorney, may the firm comply with the client’s request?

Question 2: If so, who bears the cost of copying the file?

Answer 1: According to Missouri Formal Opinion 115, the file belongs to the client, cover to cover, with limited exceptions not applicable here. Upon termination of the representation, an attorney is obligated to surrender papers and property to which the client is entitled. Rule 4–1.16(d). In the absence of a client request or another agreement with the client, a lawyer shall securely store the file in compliance with Rule 4–1.22. Where two or more clients have one file in common, the lawyer or firm who is custodian of the file must continue to comply with the custodian’s obligation under R. 4–1.22. In response to a file request to the firm from one client only, the firm may release a copy of the file’s contents to the requesting client or to the departing attorney per the client’s direction and maintain the original file per the Rule.

Answer 2: The Rules of Professional Conduct do not address the issue of who bears the cost of copying a file under these circumstances. If a lawyer in the firm is making a copy of a file for the lawyer or firm’s own use or protection, the lawyer or firm must bear the costs of copying the file. Mo. Formal Op. 115. If the client file becomes the subject of a dispute between the jointly represented clients, Rule 4–1.15(e) requires the lawyer or firm to distribute any portion of the file as to which there is no dispute and hold the disputed portion separately until the dispute is resolved. If the dispute is not resolved within a reasonable period of time, the lawyer or firm may file an interpleader action. See, e.g., Mo. Informal Ops. 990152 and 990150.