When a firm declines a case after reviewing medical records it paid for, can it withhold those records until the client repays the cost?

Plain-English summary

Firm X did substantial plaintiff's medical malpractice work and initially accepted cases only for review, to determine whether there was sufficient evidence of negligence, causation, and damages to justify suit. During that review the firm collected medical records, often thousands of pages costing hundreds or thousands of dollars, advancing the cost on the client's behalf while telling the client he remained ultimately liable. The inquiry asked what Rule 2.8 required when the firm declined a case after advancing substantial funds: could it condition return of the records on reimbursement.

The opinion concluded that Firm X must turn over unconditionally any material, such as copies of medical reports or statements of expert opinion obtained on the client's behalf and account, that would be useful to the client in further prosecuting the claim. It explained that Rule 2.8(a)(2) requires a lawyer who withdraws from employment to take reasonable steps to avoid foreseeable prejudice to the client's rights, one means being to deliver to the client all papers and property to which the client is entitled, and that the comment to the rule indicates anything in the file helpful to successor counsel should be turned over. Although the comment did not specifically address materials gathered while deciding whether to accept a case, the opinion saw no logical reason to except them, reasoning that an attorney-client relationship exists during the evaluation period, so Rule 2.8 on withdrawal governs once the firm decides not to proceed. The opinion concluded that material of value to the client must be surrendered unconditionally without regard to who advanced the cost of acquiring it.

Currency note

This opinion was issued in 1990, before the North Carolina State Bar's adoption of the 2003 revisions to the Rules of Professional Conduct. The withdrawal and file-return provision it applies (Rule 2.8(a)(2)) has since been renumbered and revised (the corresponding Model Rule is 1.16). 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 Treat this page as historical context, not current guidance.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: Can a firm hold medical records hostage for the copying cost it advanced?

A: No. The opinion concluded that useful materials obtained on the client's account must be surrendered unconditionally, without regard to who advanced the cost.

Q: Does it matter that the firm only reviewed, and never formally took, the case?

A: No. The opinion reasoned that an attorney-client relationship exists during the evaluation period, so the withdrawal rule governs once the firm declines to proceed.

Q: What materials must be turned over?

A: The opinion concluded that anything obtained on the client's account that would be useful to the client in pursuing the claim, such as medical records and expert opinions, must be delivered.

Background and rules framework

The opinion applied North Carolina Rule 2.8(a)(2), requiring a withdrawing lawyer to take reasonable steps to avoid foreseeable prejudice to the client, including delivering all papers and property to which the client is entitled (corresponding to Model Rule 1.16). Reading the rule with its comment, the opinion extended the file-surrender duty to materials gathered while evaluating whether to accept the case, because an attorney-client relationship existed during that period.

Citations and references

Rules of Professional Conduct:

• North Carolina Rule 2.8(a)(2) and comment (avoiding prejudice on withdrawal; delivering the client's papers and property)
• MR 1.16 (declining or terminating representation; return of the file)

See also

• NC Ethics Op. RPC 178: release of a client's file
• NC Ethics Op. RPC 153: termination of joint representation and the former client's right to the file

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-79/

Original opinion text

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

Inquiry:

Firm X does a substantial amount of plaintiff's medical malpractice litigation. When a client comes to Firm X initially, it accepts the case only for review, until it determines whether there is sufficient evidence of negligence, causation and damages to justify bringing an action.

In the process of reviewing these cases, Firm X collects and reviews medical records concerning relevant treatment. In many cases, these medical records are extensive and consist of thousands of pages. Hospitals and physicians who provide these records charge for the cost of copying them. When a person has been hospitalized for an extensive period of time, the cost of obtaining the complete medical records, which may be needed for thorough review, can be hundreds and even thousands of dollars.

In many cases, in accordance with Rule 5.3 of the Rules of Professional Conduct, Firm X has advanced on behalf of the client the cost of obtaining the medical records, while always communicating to the client that he or she remains ultimately liable for this cost.

Firm X declines many of the cases because of a lack of evidence of liability. When Firm X declines a case and has advanced substantial funds on behalf of the client to obtain medical records or to obtain review of these records by physicians or other health care providers, what does Rule 2.8 require in terms of turning over to the client those medical records for which funds have been advanced? If Firm X informs the client that it will provide the medical records when the client reimburses it for the amount advanced, is it in violation of Rule 2.8? The client may, of course, obtain these records personally simply by requesting them from the treating physician or institution and paying the cost.

Opinion:

Law Firm X must turn over unconditionally to its client any material such as copies of medical reports or statements of expert opinion which were obtained on the client's behalf and account if such would be useful to the client in further prosecution of her claim. Rule 2.8(a)(2) of the Rules of Professional Conduct requires that a lawyer who withdraws from employment take reasonable steps to avoid foreseeable prejudice to rights of the client. One means of avoiding such prejudice is, in the language of the rule, "delivering to the client all papers and property to which the client is entitled." Although the rule itself does not define the extent of the client's entitlement, the comment to the rule does indicate that, "anything in the file which would be helpful to successor counsel should be turned over." There follows in the comment a nonexclusive listing of such items. While the comment does not specifically identify information gathered by a law firm incident to its determination whether it will accept a case as material which must be surrendered, there appears to be no logical reason to except such material from the obligation imposed by the rule. Regardless of the decision ultimately made by Firm X as to whether it wishes to prosecute the client's case to its conclusion, it is obvious that an attorney/client relationship exists during the period the case is being evaluated. That being the case, Rule 2.8 concerning withdrawal from representation would govern an attorney's actions in the wake of a decision not to undertake further prosecution of the client's case. If material obtained during the evaluation process on the client's account would be of some value to the client in pursuing her claim, it must, under the terms of the rule, be surrendered unconditionally without regard to whether the cost of its acquisition was advanced by the law firm or the client.