When a client gets new counsel and asks for the file but refuses to pay copying costs, who bears the expense of copying, and how is the file divided when the lawyer represented several clients in the same matter?

Plain-English summary

A lawyer represented a client in complicated litigation that settled, generating seven cartons of documents filed with the court and exchanged among the parties. The client had agreed to reimburse out-of-pocket expenses. After settlement, the client retained new counsel and asked for the entire file but refused to authorize the lawyer to incur any out-of-pocket copying expense. The inquiry asked who bears the cost of copying, and how the file is handled where the lawyer represented several clients in the same matter, where original documents were already delivered or filed with the court, and where the lawyer still represents other clients who need the original file.

The opinion concluded that the file belongs to the client. Under Rule 2.8(a)(2), a withdrawing lawyer must deliver to the client all papers and property to which the client is entitled, citing CPR 3, CPR 315, CPR 322, and CPR 328, with CPR 3 explaining that the lawyer must provide originals or copies of anything helpful to the new lawyer but need not turn over the lawyer's own notes made for future reference that do not represent completed work product. If the lawyer wants to keep a copy for her own records, she must bear that copying expense, but she need only pay for one set of copies. Where multiple clients were represented in the same matter, the lawyer may give the original file to the client the others agree should receive it, or, failing agreement, to the client a majority designate, or she may retain it until she receives a written agreement of all clients or a court order; the other clients may arrange to copy the file at their own expense. Original documents relating solely to one client must be given to that client, and if they are not, the lawyer must copy them at her own expense and provide and pay for copies until the original is delivered, citing RPC 169. Delivering original documents to the client during the representation satisfies Rule 2.8(a)(2) as to those documents, and the lawyer may then charge for additional copies of them, but may not condition delivery on payment of her bill, citing RPC 169; documents not previously provided still must be delivered. Documents timely filed with the court or delivered to a third party do not satisfy the delivery duty for the rest of the file.

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: Who owns the client's file?

A: The client. The opinion concluded that by requiring a withdrawing lawyer to provide all of the client's papers and property, Rule 2.8(a)(2) recognizes that the file belongs to the client.

Q: Must the lawyer pay to copy the whole file for the client?

A: Only for the lawyer's own set. The opinion held the lawyer must bear the copying expense only for the one set she keeps for her records; the client refusing to pay does not obligate her to copy the file for the client at her own expense beyond that.

Q: Who keeps the original file when several clients were represented in the same matter?

A: The client they designate. The opinion held the lawyer may give the original to the client the others agree on, or whom a majority designate, or may retain it pending a written agreement of all clients or a court order; the others may copy it at their own expense.

Q: Can the lawyer hold the file until her bill is paid?

A: No. The opinion held the lawyer may charge for additional copies of documents already delivered but may not condition delivery of the copies on payment of her fee, citing RPC 169.

Background and rules framework

The opinion applied North Carolina's then-current Rule 2.8(a)(2), corresponding to Model Rule 1.16(d), which requires a lawyer on termination to deliver to the client all papers and property to which the client is entitled. It read the rule, together with CPR 3, CPR 315, CPR 322, CPR 328, and RPC 169, as establishing that the file belongs to the client while allowing the lawyer to retain her own non-work-product notes and to recover the cost of copies she makes for her own records.

Citations and references

Rules of Professional Conduct:

• MR 1.16 (declining or terminating representation; surrender of papers and property)
• North Carolina Rule 2.8(a)(2)

Other opinions cited:

• North Carolina CPR 3 (file belongs to the client; lawyer's own notes need not be turned over)
• North Carolina CPR 315, CPR 322, CPR 328 (delivery of the client's file)
• North Carolina RPC 169 (copying costs; no withholding of file for unpaid fees)

See also

• NC Ethics Op. RPC 227: release of title notes to a former client
• NC Ethics Op. RPC 245: release of the file to a former co-party
• NC Ethics Op. RPC 209: disposing of closed client files

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-178/

Original opinion text

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

Editor's Note: This opinion was originally published as RPC 178 (Revised).

Inquiry #1:

Attorney represented Client A on complicated litigation which resulted in the settlement and voluntary dismissal of all claims. Numerous documents were filed with the court and exchanged between the adverse parties. Client A agreed to reimburse Attorney for all out-of-pocket expenses associated with the representation. After the settlement agreement was signed, Client A obtained new counsel who required Client A to sign a release requesting Client A's file from Attorney. The release provides that only authorized out-of-pocket expenses will be reimbursed. Client A then requested a copy of the entire file from Attorney but refused to authorize Attorney to incur any out-of-pocket expenses. Is Attorney ethically required to incur the expense of copying the seven cartons of papers which constitute the file when Client A agreed to pay for the out-of-pocket expenses associated with the representation?

Opinion #1:

Yes, if Attorney would like to keep a copy of the documents in the file for her own records. Rule 2.8(a)(2) of the Rules of Professional Conduct requires a lawyer who is withdrawing from a case to deliver to the client all papers and property to which the client is entitled. By requiring a withdrawing or dismissed lawyer to provide the client with all of his or her papers and property, Rule 2.8(a)(2) recognizes that the file belongs to the client. See CPR 3, CPR 315, CPR 322 and CPR 328.

CPR 3 explains that a lawyer must provide a former client with originals or copies of anything in the file which would be helpful to the new lawyer but that "[t]he discharged lawyer's notes made for his own future reference and study and similar things not representing a completed work product need not be turned over."

Inquiry #2:

If Attorney represented several other clients in the same matter in which she represented Client A, is Attorney required to incur the expense of copying the file for each of the several clients she represented in the litigation?

Opinion #2:

No. Attorney must only incur the expense for making one set of copies to keep as her own record of the file. However, if Attorney has represented multiple clients on the same matter, she may give the original file to the client that the other clients agree should receive the original file and the other clients may make their own arrangements to get a copy of the file. If the clients cannot agree among themselves as to which client should receive the original file, Attorney may give the file to the client that the majority of the clients designate as the person who should receive the file or she may retain the file until such time as she receives a written agreement from all of the clients or a court order indicating to whom she should give the original file.

Inquiry #3:

Attorney is still representing a majority of the clients on the particular matter and the original file is required for the representation of the remaining clients. If Client A decides to obtain new legal counsel, is Attorney required to incur the expense of copying the file for Client A?

Opinion #3:

No. She must give Client A a reasonable opportunity to make copies of the materials in the file but does not have to do so at her own expense. However, any original documents in the file that relate solely to Client A must be given to Client A. If those original documents are not given to Client A, Attorney must make a copy for Client A at Attorney's expense and, until the original is provided to Client A, Attorney must provide and pay for copies of the original document requested by Client A. See RPC 169.

Inquiry #4:

Who is entitled to retain the original documents procured, filed, or exchanged on behalf of all the clients?

Opinion #4:

See Opinion #2 above. If the clients cannot agree who should get custody of the file, Attorney must give each client a reasonable opportunity to copy the materials in the file at his or her own expense. Attorney may withhold the delivery of the original file to one of the clients until she receives a court order or written agreement of the clients indicating that the original file may be released to a designated individual.

Inquiry #5:

If Attorney delivered original documents, but not the entire file, to Client A during the course of the representation, has she fulfilled the requirement under Rule 2.8(a)(2) to deliver the file to the client so that she may charge Client A for additional copies of these original documents?

Opinion #5:

When Attorney delivered original documents to Client A during the course of the representation, she fulfilled the requirements of Rule 2.8(a)(2) with regard to the delivery of those original documents. See RPC 169. If Attorney kept copies of the original documents, Attorney may charge Client A for any additional copies of those documents which Attorney makes for Client A, but Attorney may not condition the delivery of these copies upon the payment of her bill for services. See RPC 169. However, to the extent that there are other documents in the file, either originals or copies, which were not previously provided to Client A, Attorney has not fulfilled the requirement under Rule 2.8(a)(2) to deliver the entire file to the client upon the conclusion of the representation. With regard to Attorney's duty to deliver the file when she has multiple clients, see Opinions #2, #3, and #4 above.

Inquiry #6:

If the original documents were timely filed with the court or delivered to a third party on behalf of Client A and/or the other clients, has Attorney fulfilled the requirement under Rule 2.8(a)(2) to deliver the file to the client so that she may charge Client A and/or the other clients for additional copies of these original documents?

Opinion #6:

No. See Opinion #5 above.