When a client fires a lawyer mid-case, can the lawyer charge for copying the file and hold the file until the copy costs are paid?

Plain-English summary

A lawyer discharged before the end of a client's case was asked for a copy of the file or its transfer to new counsel. The question was whether the lawyer could require the former client to pay all copy costs before releasing the file, and whether the answer would differ if the request came after the matter concluded and the lawyer wished to keep a copy.

The opinion applies Rule 1.16(a), which requires a discharged lawyer to withdraw, and Rule 1.16(d), which requires reasonable steps to protect the client's interests, including delivering papers and property to which the client is entitled. Citing its earlier Opinion No. 49, the Committee noted it had already read these provisions to require a discharged lawyer to deliver the file in pending litigation without first being paid for services and expenses. It surveyed outside authority (ABA Informal Opinion 1376, a Kentucky opinion, and a San Francisco opinion), which split on whether charging for copies is even an ethics question, and decided to treat the questions as questions of ethics.

The opinion concludes that, absent controlling language in any applicable employment agreement, a lawyer discharged in a pending matter may charge the actual cost of duplicating the file but may not condition release of the duplicate on prior payment of the copying costs. After the matter has concluded, because there is no apparent potential for prejudice to the client, the lawyer may charge the actual copying costs and condition release of the duplicate on prior payment.

In practice

Under this opinion, the timing of the request controls whether a discharged lawyer may withhold the file copy. In a pending matter, the lawyer may charge the actual duplication cost but must release the copy without requiring prior payment, so the client's case is not prejudiced. After the matter ends, the lawyer may both charge the actual copying cost and hold the copy until paid. The opinion frames these as default rules that apply absent controlling language in the employment agreement.

Common questions

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

A: Per this opinion, yes; absent a controlling agreement, the lawyer may charge the actual cost of duplicating the file.

Q: Can the lawyer hold the file until the copy costs are paid?

A: The opinion concludes no in a pending matter, the copy must be released without prior payment; but yes once the matter has concluded.

Q: Why does it matter whether the case is still pending?

A: The opinion explains that in a pending matter withholding the file could prejudice the client, while after the matter concludes there is no apparent potential for such prejudice.

Background and rules framework

The opinion applies Mississippi Rule of Professional Conduct 1.16 (declining or terminating representation, the analog of Model Rule 1.16), specifically Rule 1.16(a) (mandatory withdrawal on discharge) and Rule 1.16(d) (protecting the client's interests and delivering papers and property on withdrawal). It builds on its prior Opinion No. 49 and considers, without adopting, contrary outside authority.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.16 / Mississippi Rule 1.16: declining or terminating representation, including Rule 1.16(a) (withdrawal on discharge) and Rule 1.16(d) (delivering papers and property the client is entitled to).

Other opinions cited:

• Mississippi Ethics Opinion No. 49 (May 4, 1979): a discharged lawyer must deliver the file in pending litigation without first being paid for services and expenses.
• ABA Informal Opinion No. 1376 (Feb. 18, 1977): charging for file copies is a matter of usual practice or client agreement, not ethics.
• Kentucky Bar Ass'n Ethics Comm. Opinion No. E-280 (Jan. 1984): a discharged lawyer may charge actual duplication costs but not a disproportionate fee.
• Bar Ass'n of San Francisco Legal Ethics Comm. Opinion No. 1984-1 (Jan. 26, 1984): cited as contrary authority.

See also

• MS Bar Ethics Op. 234: Conditioning File Release on a Signed Receipt
• MS Bar Ethics Op. 208: Request for Return of Files as Notice of Discharge
• MS Bar Ethics Op. 144: Termination Fee Clauses and Client Files

Source

• Landing page: https://www.msbar.org/ethics-discipline/ethics-opinions/formal-opinions/105/
• Original PDF: https://www.msbar.org/media/1020/et_op_105-amended.pdf

Original opinion text

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

ETHICS OPINION NO. 105

OF THE MISSISSIPPI BAR

RENDERED September 09, 1985

AMENDED April 06, 2013

CLIENT FILES--In the absence of controlling language in any applicable employment agreement, an attorney discharged by his client in a pending matter may ethically charge his client for the actual cost of duplicating the client's file but may not condition the release of the duplicate file to the client on the prior payment of the copying costs.

The Ethics Committee of The Mississippi Bar has been asked to render its opinion concerning the following proposed conduct by an attorney: An attorney has been discharged by a client prior to conclusion of the client's case. The client has requested that the attorney provide the client with a copy of the client's file, or transfer the file to the client's new attorney. Is it proper for the attorney to require the ex-client to pay all copy costs prior to releasing the client file?

Would the circumstances be any different, if the client had requested the file after the conclusion of the client's cause of action and the attorney desired to keep a copy of the file in the attorney's office?

Rule 1.16(a) of the Mississippi Rules of Professional Conduct (MRPC)commands that a lawyer representing a client shall withdraw from the representation when he is discharged by the client. Rule 1.16(d), MRPC, requires the withdrawing lawyer to take reasonable steps to protect the client's interests, including delivering all papers and property to which the client is entitled. This Committee has previously interpreted these provisions as requiring a discharged lawyer to deliver to his client the file on a matter involved in pending litigation without being paid first for his services and expenses. The Mississippi Bar, Ethics Opinion No. 49 (May 4, 1979).

The ABA Committee on Ethics and Professional Responsibility has determined that the question of the propriety of a lawyer's charging a client for copies of items in a client's file is not "a question of ethics, but rather a matter of the lawyer's usual and customary practice or, if not, a matter of his agreement with his client." ABA Comm. on Ethics and Professional Responsibility, Informal Opinion No. 1376 (Feb. 18, 1977). However, at least one state bar association has opined that a lawyer discharged by a client may charge his former client for the actual costs involved in the duplication of the client's file, but he may not charge a fee disproportionate to the actual cost. Kentucky Bar Ass'n Ethics Comm., Opinion No. E-280 (Jan. 1984), reported at 1 ABA/BNA Lawyers' Manual on Professional Conduct (Current Reports) 110 (1984). But see Bar Ass'n of San Francisco Legal Ethics Comm., Opinion No. 1984-1 (Jan. 26, 1984), reported at 1 ABA/BNA Lawyers' Manual on Professional Conduct (Current Reports) 109-110 (1984).

The Committee concludes that it should address these questions as questions of ethics. This Committee concludes that, in the absence of controlling language in any applicable employment agreement, a lawyer discharged by his client in a pending matter may ethically charge his client for the actual cost of duplicating the client's file but that the lawyer may not ethically condition release of the duplicate file on the prior payment of the copying costs. Because there is no apparent potential for prejudice to the client where the subject of the representation is concluded, the Committee concludes that after the conclusion of a matter the lawyer may charge a client for the actual copying costs for duplicating a file and condition the release of the duplicate file on the prior payment of the copying costs.