When a client fires a lawyer, what part of the file must the lawyer hand over, and can the lawyer charge to copy it or withhold parts?

Plain-English summary

A client fires a lawyer mid-matter, owes no fee, and asks for the entire file to go to new counsel; a former client from years ago, owing no fee, also asks for the entire file. Both lawyers want to withhold portions and to keep the original or a copy of what they provide. The opinion asks what portions must be provided, whether the lawyer may keep a copy and charge for duplication, and when the lawyer may charge for locating and segregating documents. Each answer is in the discussion. The opinion replaces OSB Formal Ethics Opinion 2005-125.

On what must be provided, the opinion applies Oregon RPC 1.16(d) and Oregon RPC 1.15-1(d) and concludes that, absent a valid attorney lien, the lawyer must deliver the entire client file, following the "entire file" approach. The file includes documents the client provided, litigation materials, all correspondence, materials obtained from others (expert opinions, records, witness statements), all electronic documents and information maintained for the matter, and even the lawyer's work-product notes and internal memoranda. The opinion identifies categories a lawyer may withhold: documents the client is not entitled to (such as another client's memo, which may need redaction to protect that client's confidentiality), the lawyer's own documents bearing on the lawyer-client relationship (such as emails consulting counsel about the lawyer's exposure to discipline or malpractice), internal firm administrative communications, electronic data that is essentially metadata or unduly burdensome to produce, and documents barred from disclosure by law or court order.

On charges, the opinion concludes a lawyer may keep a copy of the file but may not charge for copies of original documents the client provided or originals prepared for the client and held at the client's request; copies the lawyer keeps of those are at the lawyer's expense. For other documents, duplication charges depend mainly on the fee agreement: if it provides for duplication charges, they apply even after the relationship ends; if it provides for copies without charge, the client is entitled to one free copy of documents not previously provided, but may be charged for duplicate copies of items already sent. An electronic-only file may be provided electronically in a confidentiality-protecting format, though an in-custody client may need an accessible format. On locating and segregating, the lawyer may not charge for identifying and segregating materials the lawyer chooses to withhold, but may charge for segregating materials the lawyer is legally prohibited from producing or where the client requested only certain portions; "clearly excessive" or unreasonable charges are prohibited under Oregon RPC 1.5(a) and Oregon RPC 1.8(i).

In practice

This opinion (issued 2017) interprets the current Oregon Rules of Professional Conduct, but it is more than five years old, so readers should verify the current rule text before relying on specifics. The opinion holds that Oregon follows the entire-file approach: on termination the former client is generally entitled to the whole file, including work product, subject to defined exceptions. Per the opinion, duplication charges turn on the fee agreement, with originals provided by or prepared for the client copied at the lawyer's expense, and the lawyer may not bill for segregating documents the lawyer chooses to withhold. The opinion holds that charges must not be clearly excessive and that electronic files may be produced electronically in a secure, accessible format.

Common questions

Q: When a client fires a lawyer, how much of the file must the lawyer hand over?

A: The opinion concludes that, absent a valid lien, the lawyer must deliver the entire client file, including client documents, litigation materials, correspondence, materials from others, electronic records, and work-product notes, subject to narrow exceptions.

Q: What can the lawyer withhold from the file?

A: The opinion concludes a lawyer may withhold materials the client is not entitled to (like another client's memo), the lawyer's own documents about the lawyer-client relationship, internal administrative records, burdensome metadata, and documents barred by law or court order.

Q: Can the lawyer charge the client to copy the file?

A: It depends on the fee agreement. The opinion concludes the lawyer cannot charge for copies of originals the client provided or that were prepared for the client, but may charge for other duplication consistent with the fee agreement; a client owed free copies gets one free copy of documents not previously provided.

Q: Can the lawyer bill for time spent sorting the file?

A: Only in part. The opinion concludes the lawyer may not charge for segregating materials it chooses to withhold, but may charge for segregating materials legally barred from production or where the client requested only certain portions, and charges may not be clearly excessive.

Background and rules framework

The opinion interprets Oregon RPC 1.16(d) (protecting client interests on termination), Oregon RPC 1.15-1(d) (delivering client property and accounting), and Oregon RPC 1.5(a) and 1.8(i) (reasonable fees and charges), corresponding to Model Rules 1.16, 1.15, 1.5, and 1.8. It adopts the entire-file approach, consistent with ABA Formal Opinion 471.

Citations and references

Rules of Professional Conduct:

• Oregon RPC 1.16(d) / Model Rule 1.16 (protecting client interests on termination)
• Oregon RPC 1.15-1(d) / Model Rule 1.15 (delivering client property; accounting)
• Oregon RPC 1.5(a), 1.8(i) / Model Rules 1.5, 1.8 (reasonable fees and charges)

Cases:

• In re Arbuckle, 308 Or 135, 775 P2d 832 (1989); In re Chandler, 306 Or 422, 760 P2d 243 (1988), delivering the file to a former client
• Crimson Trace Corp. v. Davis Wright Tremaine LLP, 355 Or 476, 326 P3d 1181 (2014), in-firm counsel communications

Other opinions cited:

• ABA Formal Ethics Op. No. 471 (2015) (entire-file approach)
• OSB Formal Ethics Op. No. 2005-90 (attorney liens); OSB Formal Ethics Op. No. 2016-191 (electronic-only files)

See also

• ABA Formal Op. 471: Surrendering Papers and Property to a Former Client
• OSB Ethics Op. 2016-191: Electronic-Only or "Paperless" Client Files
• OSB Ethics Op. 2005-90: Client Property and Attorney Liens

Source

• Landing page: https://www.osbar.org/ethics/toc.html
• Original PDF: https://www.osbar.org/_docs/ethics/2017-192.pdf