Can a lawyer charge a former client for the cost of pulling a closed file out of storage?

Plain-English summary

The opinion addressed whether a lawyer may charge a former client for the cost of retrieving a closed file from storage. It concluded a lawyer could charge the actual retrieval cost subject to conditions tied to the lawyer's file-retention duties under RPC 209, which required keeping a closed file for at least six years unless the client consented to destruction or failed to retrieve it after notice.

To charge the actual cost of retrieval, the lawyer had to send notice to the client at the last known address within a reasonable time after the matter closed, asking what the client wanted done with the file and offering options: consent to destruction; agree to storage with the understanding that retrieval would be charged at actual cost; or retrieve the file free of charge within a reasonable time. If the client directed mailing, the lawyer could charge shipping; if the client did not respond, the lawyer had to store the file for the six-year period and could recoup the actual retrieval cost at any time during that period.

The opinion concluded the lawyer could not charge for photocopying the closed file unless the client requested more than one copy. It also concluded that, once the six-year storage period passed and the lawyer was free to destroy the file, the lawyer could charge the actual cost of retrieval and copying regardless of whether earlier notice had been received. Throughout, the opinion concluded a lawyer could never withhold originals or copies of documents to extract payment of fees or costs; the lawyer had a claim for payment but could not assert a lien against the file to secure it.

Currency note

This opinion was issued in 1998, before North Carolina's adoption of the 2003 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis, including the file-retention period and notice mechanics described here. Treat this page as historical context, not current guidance.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: Could a lawyer charge a client to pull a closed file from storage?

A: Yes, but only the actual cost and only if the lawyer had timely notified the client, after the matter closed, of the option to store the file with retrieval charged at actual cost.

Q: Could a lawyer charge for copying the closed file?

A: Generally no. The opinion concluded the lawyer could not charge for photocopying the closed file unless the client requested more than one copy of the file or a document the lawyer had not retained in original form.

Q: Could a lawyer hold the file until the client paid?

A: No. The opinion concluded a lawyer could never withhold originals or copies of documents to extract payment; the lawyer had a claim for payment but no lien against the file.

Background and rules framework

At the time, the opinion built on the lawyer's file-retention obligations stated in RPC 209 and the copying rule in RPC 178, applying them to the question of charging for retrieval of a stored closed file. In current numbering the subject matter corresponds to Model Rule 1.16 (duties on termination, including surrender of client papers and property).

Citations and references

Rules of Professional Conduct:

• Current counterpart: Model Rule 1.16 (declining or terminating representation; return of client papers and property)

Other opinions cited:

• RPC 209: minimum six-year retention of closed client files and notice before destruction
• RPC 178: charging clients for copies of file documents

See also

• ABA Formal Op. 471: Surrendering a Former Client's File
• ABA Formal Op. 92-369: Files of a Deceased Sole Practitioner

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/98-formal-ethics-opinion-9/

Original opinion text

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

Inquiry:

May a lawyer charge a client for retrieving a closed file from storage?

Opinion:

A lawyer may charge a client the actual cost of retrieving a closed client file from storage subject to certain conditions.

RPC 209 requires a lawyer to keep a closed client file, on which no further representation is required, a minimum of six years unless the lawyer obtains the consent of the client to destroy the file or, after notice to the client, the client fails to retrieve the file. After six years pass, the lawyer may destroy the file without notifying the client provided the lawyer does not destroy any personal possessions or documents of the client.

To charge a client the actual cost of retrieving a closed file from storage, a lawyer must send a notice to the client at the client's last known address within a reasonable period of time after the matter is concluded and the file is closed. The notice should ask the client what the client wants the lawyer to do with the closed file. The options that may be given to the client are as follows: consent to the destruction of the file; agree that the lawyer will store the file with the understanding that the client will be charged the actual cost of retrieving the file from storage; or retrieve the file free of charge from the lawyer's office within a reasonable time after receipt of the notice. If the client directs the lawyer to mail the file, the lawyer may charge the shipping cost to client. If the client fails to respond to the notice, the lawyer must store the file for six years as required by RPC 209 and may recoup from the client the actual expense of retrieving the file at any time during the six year mandatory storage period.

The lawyer may not charge the client for photocopying the closed file (or any portion thereof) unless the client requests more than one copy of the file or a document in the file. The client may be charged for duplicate copies of the same document unless the lawyer retained the original document. RPC 178. Regardless of whether a notice was received by the client at the time that the representation was concluded, after a closed file is stored for six years and the lawyer is allowed to destroy the file without the client's consent, the lawyer may charge the client the actual cost of retrieving the file and making copies of the file or any document therein. At no time may a lawyer withhold originals or copies of documents or a file to extract payment of legal fees, retrieval costs, or copying costs; the lawyer has a claim for payment but he may not assert an interest in or lien against the file to secure payment.