When a client asks for their file after the representation ends, what must the lawyer hand over, and who pays the copying cost?

Plain-English summary

The committee split the question into two situations. In the first, the representation has ended and no fee is owed or any unpaid fee is undisputed. Drawing on ABA Informal Opinion 1376 (Feb. 18, 1977), the committee concluded that the lawyer must return all materials the client supplied, plus materials in the file that the client paid for and that would benefit the client, but the lawyer need not return items the lawyer created for the lawyer's own use rather than for the client. The committee quoted Informal Opinion 1376: the client is entitled to receive what he has paid for and to the return of what he delivered to the lawyer, and beyond that the lawyer should not withhold any item that could reasonably be anticipated to be useful to the client.

On copying costs, the committee concluded that items the client gave the lawyer must be returned, and if the lawyer wants to keep copies, the lawyer pays for them. For other items such as briefs and pleadings, the committee tied the charge to the lawyer's ordinary practice: if the lawyer normally furnishes a current client copies without charge, the same should apply to a terminated client; if the lawyer customarily charges, the normal charge is appropriate.

In the second situation, where a fee is unpaid or in dispute, the committee said the lawyer's right to retain the file has traditionally been treated as a matter of law rather than ethics, citing ABA Informal Opinion 1376 and ABA Formal Opinion 209. The committee noted that acquiring a possessory lien in the client's files to secure proper fees is not unethical under DR 5-103(A)(1) and EC 5-7, and that Oklahoma has long recognized a general retaining lien (citing Roxana Petroleum Co. v. Rice, In re Choate, and In re Hays), with an additional statutory lien available under Title 5 O.S. § 6. The committee concluded that the lawyer's duties toward retained files are governed by general commercial law, but that once the fee dispute is resolved the lawyer is again bound by the file-return parameters set out above.

Currency note

This opinion was issued in 1979 under the Code of Professional Responsibility, before Oklahoma adopted the Oklahoma Rules of Professional Conduct (1988) and the later Ethics 2000 revisions. File-return and termination duties have since been recast (compare Model Rule 1.16(d) and Oklahoma RPC 1.16(d)), and retaining-lien practice varies. 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: After a representation ends, what does the lawyer have to give the client back?

A: Where no fee is in dispute, the committee concluded the lawyer must return all materials the client supplied plus paid-for materials that benefit the client, but not items the lawyer created for the lawyer's own use.

Q: Who pays to copy the file?

A: The committee concluded that the lawyer pays for copies the lawyer wants to keep of items the client supplied. For briefs, pleadings, and similar items, the lawyer may charge a terminated client only on the same basis the lawyer uses with current clients.

Q: Can a lawyer hold the file when the fee is unpaid or disputed?

A: The committee treated this as a question of law, not ethics. It noted that a possessory (retaining) lien to secure proper fees is not unethical, and that Oklahoma recognizes such a lien, with an additional statutory lien under Title 5 O.S. § 6.

Background and rules framework

The opinion interpreted the Code of Professional Responsibility's treatment of a lawyer's lien, DR 5-103(A)(1) (a lawyer may acquire a lien granted by law to secure a fee or expenses) and EC 5-7, and relied on ABA Informal Opinion 1376 and ABA Formal Opinion 209. It predates the Model Rules and made no Model Rule citation.

Citations and references

Rules of Professional Conduct:

• DR 5-103(A)(1) (Code of Professional Responsibility): a lawyer may acquire a lien granted by law to secure the lawyer's fee or expenses.
• EC 5-7 (Code of Professional Responsibility): a lawyer may protect the right to collect a fee through legally permissible liens.

Statutes:

• Title 5 O.S. § 6 (Oklahoma attorney's lien).

Cases:

• Roxana Petroleum Co. v. Rice, 109 Okla. 161, 235 P. 502 (1925).
• In re Choate, 174 Okla. 446, 50 P.2d 706 (1935).
• In re Hays, 189 Okla. 386, 118 P.2d 265 (1941).

Other opinions cited:

• ABA Informal Opinion 1376 (Feb. 18, 1977): a client is entitled to what he paid for and what he delivered to the lawyer.
• ABA Formal Opinion 209: a retaining lien for unpaid fees is a question of law.

See also

• Okla. Bar Ethics Op. 301: Turning client files over to a historical or educational institution
• Okla. Bar Ethics Op. 234: Withholding a divorce decree until the fee is paid
• Okla. Bar Ethics Op. 296: Mortgage or security interest in litigation property to secure a fee

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-295/

Original opinion text

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

Adopted March 16, 1979

QUESTION

A client for whom you or a member of your law firm has done work comes to the law office and requests that all of his files be delivered to him.

Is the lawyer or firm required to deliver the complete file to the client or is the lawyer required to furnish only portions of the file, and if so, what portions, and if photocopies are to be made, who is to withstand the photocopy charges, etc.?

DISCUSSION

Duty to Turn Over Files to Client

In this portion of the Advisory Opinion, the assumption is being made that there is no dispute between the former attorney and client regarding fees. As a dispute about fees substantially alters the lawyer’s obligations and rights, the latter part of this opinion will address that matter. This first portion presupposes that the employment relationship has been terminated and that either all fees have been paid or any that are due and unpaid are not in dispute.

Informal Opinion 1376 dated February 18, 1977 promulgated by the Committee on Ethics and Professional Responsibility of the American Bar Association provides significant guidance to a lawyer faced with the request for the return of clients’ files.

The position taken in Informal Opinion 1376 very clearly requires that the attorney return all materials supplied by the client to the attorney. In addition, materials in the file for which the client has paid and which will be of benefit to the client should be delivered to the client. However, items that have been created by the lawyer for his own use (and apparently not for the use of the client) need not be returned.

As is stated in Informal Opinion 1376:

“The ethical principles involved are simple. The client is entitled to receive what he has paid for and to the return of what he has delivered to the lawyer. Beyond that, the conscientious lawyer should not withhold from the client any item which it could reasonably be anticipated to be useful to the client.”

The posed question also inquires as to who should withstand the cost of copying. It is clear that any items that the client has given to the lawyer should be returned to the client and if the lawyer desires to retain copies, it should be at the lawyer’s expense. Whether or not the lawyer makes charges for other items such as briefs, pleadings, etc. should be determined by a reference to the lawyer’s normal practice. If the lawyer normally furnishes an existing client with a copy of a brief or a pleading without charge, then the same should be done for a terminated client. On the other hand, if the lawyer customarily charges the client for such copies, then it would be appropriate to impose the normal charge.

Matters in Which the Fee is in Dispute

The lawyer’s right to retain a file when a fee has not been paid or a fee is in dispute has traditionally been thought of as not a matter of ethics but a matter of law. See Informal Opinion 1376 and Formal Opinion 209.

It is clear that there is nothing unethical about a lawyer acquiring a possessory lien in the files given to him by his client in order to secure the payment of proper fees. See DR 5-103(A)(1) and Ethical Consideration 5-7.

Indeed, Oklahoma has long recognized the general, possessory or retaining lien given to a lawyer on property or money of his clients in the hands of the lawyer. See Roxana Petroleum Co. v. Rice, 109 Okla. 161, 235 P. 502 (1925); In Re Choate, 174 Okla. 446, 50 P.2d 706 (1935) and In Re Hays, 189 Okla. 386, 118 P.2d 265 (1941). Under certain circumstances, an additional statutory lien is available to an attorney under Title 5 O.S. § 6.

It would appear that the lawyer’s duties in regard to the collateral (files) that he is holding to secure his alleged right to payment of fees would be governed by the general commercial law applicable to such matters and not to ethical considerations. However, once the dispute as to fee has been resolved, the lawyer should be bound by the parameters of conduct set forth above.