When a former client asks for their file, what does a New York lawyer have to turn over, and can the lawyer charge for assembling it?
NY State Bar Ethics Opinion 766: Disposition of a former client's files
Short answer: A lawyer must promptly turn over or provide access to the files a former client is entitled to possess; under New York law the former client is presumptively entitled to the entire file unless substantial grounds to refuse exist, and the lawyer may charge a reasonable, non-excessive fee for assembling and delivering it.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.
Plain-English summary
The opinion answered what a lawyer owes a former client who asks for the files generated during the representation. DR 9-102(C)(4) required a lawyer to promptly deliver to the client the property in the lawyer's possession that the client is entitled to receive. The committee treated which documents the client is entitled to as primarily a question of law, not ethics, and directed lawyers to the controlling New York authority.
That authority is the Court of Appeals decision in Sage Realty Corp. v. Proskauer Rose Goetz & Mendelsohn, 91 N.Y.2d 30 (1997). Sage Realty abandoned the older distinction between an attorney's "work product" (kept by the lawyer) and the "end product" (belonging to the client), and adopted the majority rule that, on termination where no unpaid-fee claim is outstanding, the client is presumptively granted full access to the file with narrow exceptions. The court relied on the Restatement (Third) of the Law Governing Lawyers, under which a former client may inspect and copy any document the lawyer possesses relating to the representation unless substantial grounds exist to refuse.
The committee expressly recognized that its earlier opinion, N.Y. State 398 (1975), had followed the now-rejected minority view that the client could not require delivery of the firm's work product. The committee held that to the extent N.Y. State 398 presumed certain documents were non-accessible, Sage Realty had plainly rejected that view and it was no longer valid. On cost, the committee followed Sage Realty's statement that, unless already paid for, assembling and delivering documents is properly chargeable to the client under the firm's customary fee schedule or the retainer, subject to the rule that the fee may not be excessive (DR 2-106(A)).
In practice
Under the Code and New York law as stated in 2003, the opinion held that a lawyer responding to a former client's file request must promptly turn over or provide access to the file the client is entitled to possess, which under Sage Realty presumptively means any document relating to the representation absent substantial grounds to refuse. The opinion noted that whether substantial grounds exist, and the effect of an outstanding fee claim or a retaining lien, are questions of law outside the committee's ethics jurisdiction.
The opinion held that a lawyer may charge the former client a reasonable fee for assembling and delivering the file, measured by customary fee schedules or the governing retainer, but that fee may not be excessive under DR 2-106(A).
Common questions
Q: Does a New York lawyer have to give a former client the entire file, including the lawyer's notes and drafts?
A: Presumptively yes. The opinion follows Sage Realty, under which the former client is entitled to any document relating to the representation unless substantial grounds exist to refuse; the older work-product carve-out in N.Y. State 398 is no longer valid.
Q: Can the lawyer charge the former client for copying and assembling the file?
A: Yes. The opinion holds the lawyer may charge a reasonable fee for assembly and delivery based on customary rates or the retainer, but the fee may not be excessive under DR 2-106(A).
Q: Can the lawyer withhold the file until a fee dispute is resolved?
A: The opinion does not resolve this. It treats the effect of an unpaid-fee claim and the common-law retaining lien as questions of law outside its ethics jurisdiction, noting only that Sage Realty's presumption applied where no fee claim was outstanding.
Background and rules framework
The opinion interprets New York's former Code of Professional Responsibility, principally DR 9-102(C)(4) (prompt delivery of client property), with DR 2-106(A) (excessive fees) governing what the lawyer may charge for assembly and DR 2-110(A)(2) (return of papers on withdrawal) noted as a parallel duty. The Model Rules analogues are Rule 1.15(d) (delivery of property the client is entitled to receive), Rule 1.16(d) (surrender of papers on termination), and Rule 1.5 (reasonable fees). New York replaced this Code with the Rules of Professional Conduct in 2009; the DR numbers cited here are historical.
Citations and references
Rules of Professional Conduct:
- MR 1.15(d) (delivery of client property)
- MR 1.16(d) (return of papers on termination)
- MR 1.5 (reasonable fees)
- NY DR 9-102(C)(4), DR 2-106(A), DR 2-110(A)(2)
Cases:
- Sage Realty Corp. v. Proskauer Rose Goetz & Mendelsohn, 91 N.Y.2d 30 (N.Y. 1997), former client presumptively entitled to full file access
- Lai Ling Cheng v. Modansky Leasing Co., 71 N.Y.2d 454 (N.Y. 1989), common-law retaining lien
Other opinions cited:
- N.Y. State 398 (1975): overruled in part; old work-product carve-out no longer valid
- N.Y. State 623 (1991): which documents belong to the lawyer can be a mixed question of law and fact
See also
- NY State Bar Op. 780: Retaining copies of the client file
- NY State Bar Op. 1035: Original wills when taking over a retiring lawyer's practice
- NY State Bar Op. 1070: Joint clients' confidentiality and file access
Source
- Landing page: https://nysba.org/ethics-opinion-766/