When a former client asks for the file, does the lawyer have to hand over the lawyer's own title notes, and can the lawyer charge for copies of documents the client already received?

Plain-English summary

A lawyer had handled real-estate transactions for a client, giving the client originals or copies of the pertinent documents at each closing. After the representation ended, the former client asked for copies of the closed files. The lawyer had supplied deeds, maps, title opinions, title insurance policies, correspondence, and the significant information for each transaction, but had withheld his title notes, which he treated as work product that often drew on base title notes for subdivisions, notes from other files, and his firm's conveyance lists. The first question was whether the lawyer had to provide copies of those title notes.

The opinion concluded that he did not. Although Rule 2.8(a)(2) required a lawyer to deliver to a former client all papers to which the client is entitled, the comment to the rule provided that the lawyer's personal notes need not be released, and the opinion also cited CPR 3.

On the second question, the opinion concluded that the lawyer may charge the former client for additional copies of documents already delivered at the closings. Because delivering the originals at closing satisfied Rule 2.8(a)(2), the lawyer could charge for further copies he made, but could not condition their delivery on payment of his bill for legal services. The opinion added that if the lawyer retained any original documents from the client's transactions, the lawyer must bear the cost of copying them for the client until he delivered the originals.

Currency note

This opinion was issued in 1994, before the North Carolina State Bar's adoption of the 2003 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 Treat this page as historical context, not current guidance.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 lawyer have to give a former client the lawyer's title notes?

A: No. The opinion concluded that title notes are the lawyer's personal work product; the comment to Rule 2.8(a)(2) provided that a lawyer's personal notes need not be released.

Q: Can the lawyer charge for copies of documents the client already got at closing?

A: Yes. The opinion concluded that delivering the originals at closing satisfied Rule 2.8(a)(2), so the lawyer may charge the former client for additional copies of those documents.

Q: Can the lawyer hold the copies until the old bill is paid?

A: No. The opinion held that the lawyer may not condition delivery of the copies on payment of his bill for legal services.

Q: Who pays to copy originals the lawyer still holds?

A: The lawyer. The opinion stated that if the lawyer retained original documents from the client's transactions, the lawyer must bear the cost of copying them for the client until the originals are delivered.

Background and rules framework

The opinion applied North Carolina Rule 2.8(a)(2), the file-return provision corresponding to Model Rule 1.16(d), which required delivering to a former client all papers to which the client is entitled. It relied on the rule's comment, that a lawyer's personal notes need not be released, to exclude the lawyer's title notes, and cited the earlier opinion CPR 3. The fee question turned on whether the lawyer had already satisfied the delivery obligation.

Citations and references

Rules of Professional Conduct:

• MR 1.16 (declining or terminating representation; returning client papers)
• North Carolina Rule 2.8(a)(2)

Other opinions cited:

• North Carolina CPR 3 (release of file materials)

See also

• NC Ethics Op. RPC 178: release of the client's file
• NC Ethics Op. 2013 Formal Op. 15: return of electronic records on termination
• NC Ethics Op. 2006 Formal Op. 18: surrender of a deposition transcript

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-169/

Original opinion text

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

Inquiry #1:

Attorney represented Ex-client on a number of real estate transactions prior to the termination of the employment. Attorney provided Ex-client with the original documents or copies of most of the pertinent documents at the time of the closing for each real estate transaction. All of the real estate transactions Attorney handled for Ex-client were completed and Attorney no longer represents Ex-client. Ex-client has asked Attorney to provide him with copies of the documents in his closed real estate files. Attorney has provided Ex-client with copies of deeds, maps, title opinions, title insurance policies, correspondence and all of the significant information regarding the purchases and the loans for Ex-client's respective properties. He has not provided Ex-client with copies of his title notes. Attorney considers his title notes to be work product which often involves using base title notes for subdivisions or title notes from other files as well as the conveyance list files maintained by Attorney's law firm. Is Attorney ethically required to provide Ex-client with a copy of the title notes for the properties?

Opinion #1:

No. Although Rule 2.8(a)(2) requires a lawyer to deliver to a former client "all papers ...to which the client is entitled," the comment to the rule notes that "[t]he lawyer's personal notes...need not be released." See also CPR 3.

Inquiry #2:

If Attorney does not condition the delivery of the copies to Ex-client on the payment of his bill for prior legal services, may Attorney charge Ex-client for the copies he delivers to Ex-client of documents which Attorney had already provided to Ex-client at the time of the closings?

Opinion #2:

Yes. When Attorney delivered the original documents to Ex-client at the time of the closings for the real estate transactions, he fulfilled the requirements of Rule 2.8 (a)(2). If Attorney kept copies of these original documents, Attorney may charge Ex-client for any additional copies which Attorney makes for Ex-client but attorney may not condition the delivery of these copies to Ex-Client on the payment of his bill for legal services. If Attorney retained in his office files any original documents from Ex-client's real estate transactions, Attorney must bear the cost of making copies for Ex-client until such time as he delivers the original documents to Ex-client.