When representation ends, can a lawyer keep copies of the client's file even if the client objects, and can the lawyer demand a malpractice release in exchange for not keeping copies?
NY State Bar Ethics Opinion 780: Keeping copies of the client's file and conditioning that on a release
Short answer: A lawyer may generally retain copies of a client's file at the lawyer's own expense, even over the client's objection, and may condition giving up that right on a release from malpractice liability for work already completed.
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 committee addressed two questions: whether a lawyer may keep copies of a client's file over the client's objection, and whether the lawyer may demand a release from liability as a condition of not keeping copies.
On the first question, the committee starts from the rule that when representation ends, the lawyer must deliver to the client the property and files the client is legally entitled to receive (DR 2-110(A)(2) and DR 9-102(C)(4)). Which documents the client is entitled to is a question of law, not ethics. The Code does not bar a lawyer from keeping copies, and several sources point the other way: EC 4-6 distinguishes the client's personal papers from the lawyer's papers, and DR 4-101(C)(4) lets a lawyer reveal confidences to collect a fee or defend against an accusation of wrongdoing, which implies a right to keep copies for those purposes. New York case law recognizes that both the client and the lawyer have an interest in the file (the committee discusses Sage Realty Corp. v. Proskauer Rose and Bronx Jewish Boys v. Uniglobe). The committee agrees with opinions from several other jurisdictions that a lawyer may retain copies of the file at the lawyer's own expense, subject to possible exceptions it did not need to resolve (for example, where the client has a legal right to prevent copying of particular documents).
On the second question, the committee had previously held a lawyer may not demand a general release as a condition of returning the file (N.Y. State 339). But it had not addressed conditioning the surrender of the right to keep copies on a release. Because the committee now recognizes that right, it holds that if the client objects to the lawyer retaining copies, the lawyer may insist on a general release as a condition of giving up copies. DR 6-102(A) bars only prospective limits on malpractice liability, not a release for work already completed. Consistent with N.Y. State 591, the lawyer may negotiate such a release only after taking specific steps to ensure fairness, including advising the client to retain independent counsel for the negotiation, and a lawyer may not hold the client's papers hostage to extract a release.
In practice
Under the New York Code as it stood at the time, the opinion holds that the file belongs to the client, but the lawyer may keep copies at the lawyer's own expense, grounding that in EC 4-6, DR 4-101(C)(4), and New York case law recognizing a shared interest in the file. The committee separates two situations a lawyer may conflate: a lawyer may not condition return of the file on a release (the file must go back), but where the lawyer is forgoing the right to keep copies because the client objects, the lawyer may seek a release for already-completed work. The committee anchors that distinction in DR 6-102(A)'s prospective-only prohibition and the N.Y. State 591 fairness safeguards (full disclosure of the facts giving rise to potential claims, prior discharge or withdrawal, and advice to seek independent counsel).
Common questions
Q: Does the client's file belong to the client or the lawyer?
A: The file belongs to the client. The committee, citing Sage Realty and Bronx Jewish Boys, says courts decline to recognize a lawyer's property right in the file superior to the client's, while both have an interest in it.
Q: Can the lawyer keep a copy after returning the file?
A: Yes. The committee holds a lawyer may generally retain copies at the lawyer's own expense, even over the client's objection, supported by EC 4-6 and DR 4-101(C)(4).
Q: Can a lawyer demand a malpractice release as a condition of returning the file?
A: No. Citing N.Y. State 339 and N.Y. State 591, the committee says a lawyer may not withhold the file or condition its return on a release.
Q: Then when can a lawyer seek a release?
A: When the client objects to the lawyer keeping copies, the lawyer may condition giving up that right on a general release for completed work. DR 6-102(A) bars only prospective limits, and the lawyer must follow the N.Y. State 591 fairness steps, including advising the client to obtain independent counsel.
Background and rules framework
The opinion applies New York's former Code of Professional Responsibility. DR 2-110(A)(2) and DR 9-102(C)(4) require returning the client's property and files on termination (facets of Model Rules 1.16 and 1.15). EC 4-6 distinguishes the client's papers from the lawyer's, and DR 4-101(C)(4) permits revealing confidences to collect a fee or defend against wrongdoing accusations (the confidentiality framework of Model Rule 1.6). DR 6-102(A) prohibits prospectively limiting malpractice liability but not releasing claims for completed work, the line drawn in Model Rule 1.8(h).
Citations and references
Rules of Professional Conduct:
- MR 1.16 (declining or terminating representation; returning the file); NY DR 2-110(A)(2)
- MR 1.15 (safekeeping property); NY DR 9-102(C)(4)
- MR 1.8(h) (limiting malpractice liability); NY DR 6-102(A)
- MR 1.6 (confidentiality; self-defense exception); NY DR 4-101(C)(4)
Cases:
- Sage Realty Corp. v. Proskauer Rose Goetz & Mendelsohn, 91 N.Y.2d 30 (1997), no attorney property right in the file superior to the client's
- Bronx Jewish Boys v. Uniglobe, Inc., 166 Misc. 2d 347 (Sup. Ct. 1995), the file belongs to the client, subject to a retaining lien
- In re Grand Jury Proceedings (Vargas), 727 F.2d 941 (10th Cir. 1984), client files belong to the client
Other opinions cited:
- N.Y. State 339 (1974): a lawyer may not demand a general release as a condition of returning the file
- N.Y. State 591 (1988): a lawyer may negotiate a release of malpractice claims only with fairness safeguards, including advising independent counsel
- N.Y. State 766 (1993) and N.Y. State 623 (1991): which documents the client is entitled to is a question of law
- Nebraska Op. 2001-03, Massachusetts Op. 92-4, S.F. Bar Op. 1990-1, Alabama Op. 88-102, Ohio Op. 92-8, Colorado Op. 104, and Kentucky Op. E-235: a lawyer may keep copies at the lawyer's own expense
See also
- NY State Bar Op. 1094: Releasing a client file to former counsel
- NY State Bar Op. 1142: Electronic client files and charging to print
- NY State Bar Op. 1192: Retention and disposition of closed client files
- NY State Bar Op. 1164: Destroying client files on request and conditions
Source
- Landing page: https://nysba.org/ethics-opinion-780/