When a lawyer jointly represented a married couple who are now divorcing, who is entitled to the joint client file?

Currency note

This opinion was issued in 2000, before Rhode Island's later renumbering of the Rules of Professional Conduct. The opinion cites "Rule 1.17" for the duty to surrender client papers and property; Rhode Island Ethics Advisory Panel opinions issued from 2003 onward cite that same duty as Rule 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 Treat this page as historical context, not current guidance.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.

Plain-English summary

A lawyer had jointly represented a married couple (Client A and Client B) regarding threatening and harassing communications they had received, a matter connected to an earlier, separate representation in which the lawyer had represented only Client A. The couple later divorced, in a matter the lawyer did not handle. Client B asked the lawyer for copies of both the joint file and Client A's separate file; the lawyer agreed to produce the joint file but declined to produce Client A's separate file.

The panel held that a client file is the property of the client, so both Client A and Client B, as joint clients in the harassment matter, were entitled to that joint file. Citing its own prior opinion, R.I. Sup. Ct. Ethics Advisory Panel Op. 90-38 (1990), for the principle that file contents belong to the clients, the panel directed the lawyer, absent an agreement between Client A and Client B on who would receive the original, to give each spouse a copy of the joint file (excluding the lawyer's own work product) and to hold the original in escrow until the spouses agree on a recipient or a court orders otherwise, citing R.I. Sup. Ct. Ethics Advisory Panel Op. 91-2 (1991) for that procedure.

On the separate file, the panel found the lawyer's refusal to produce Client A's file from the unrelated matter, in which Client B was never a client, was proper and consistent with the lawyer's confidentiality obligations to Client A under Rule 1.6.

Common questions

Q: If I jointly represented two people who are now on opposite sides of a divorce, who owns the file from that joint representation?

A: Both. The panel held a joint client file is the property of both joint clients, regardless of a later falling-out between them.

Q: Do I have to hand over the original file, or can I keep it and give copies?

A: The panel's guidance was to give each client a copy, minus the lawyer's own work product, and hold the original in escrow until the clients agree who receives it or a court orders otherwise.

Q: Can one of the former joint clients also get my file from a separate, earlier matter where only the other spouse was my client?

A: No. The panel found withholding that separate file was proper, since the requesting spouse was never a client in that matter and confidentiality under Rule 1.6 protects it.

Background and rules framework

The opinion applies Rule 1.17(d) (captioned "Declining or Terminating Representation" in the pre-2003 Rhode Island numbering, corresponding to Model Rule 1.16(d)), which requires a lawyer to surrender papers and property to which the client is entitled upon termination of representation. It also applies Rule 1.6 (Confidentiality of Information, Model Rule 1.6) to bar disclosure of a file from a matter in which the requesting person was not a client.

Citations and references

Rules of Professional Conduct:

• MR 1.16(d) (Declining or Terminating Representation, surrender of papers and property) / RI Rule 1.17(d)
• MR 1.6 (Confidentiality of Information) / RI Rule 1.6

Other opinions cited:

• R.I. Sup. Ct. Ethics Advisory Panel Op. 90-38 (1990): the contents of a client's file are the property of the client
• R.I. Sup. Ct. Ethics Advisory Panel Op. 91-2 (1991): procedure for holding an original file in escrow pending agreement between multiple entitled clients

See also

• ABA Formal Op. 471: Surrender of Papers and Property to Former Client
• Colorado Bar Op. 132: Confidentiality After Client Death

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%202000-6.pdf

Original opinion text

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

Final

                              Rhode Island Supreme Court
                Ethics Advisory Panel Opinion No. 2000-6, Request No. 806
                                  Issued August 3, 2000

Facts

    An attorney seeks Panel advice about the appropriate disposition of a client file. The file was

created during the joint representation of a married couple (Client A and Client B) regarding threatening
and harassing correspondence and telephone calls which the couple had been receiving. The subject of
the threats related to a previous matter, in which Client A had been represented by the inquiring
attorney. The couple is now in the midst of divorce proceedings. The inquiring attorney does not
represent either party in the divorce matter. Client B has asked the inquiring attorney for copies of the
couple's joint file, and of Client A's file in the separate matter. The inquiring attorney has informed
Client B that he/she will not produce Client A's file in the separate matter.

Issues Presented

    The inquiring attorney asks whether he/she is obligated to turn over the joint file to

Client B.

Opinion

      A client file is the property of the client, and thus both Client A and Client B are entitled to the

joint file.

Reasoning

     Upon termination of representation, Rule 1.17(d) requires a lawyer to surrender papers and

property to which the client is entitled. In Opinion No. 90-38 (1990), the Panel stated that the contents
of the clients' file are the property of the clients. Thus, both Client A and Client B
are entitled to the joint file. Absent an agreement between Client A and Client B as to which client is to
receive the original joint file, the Panel advises the inquiring attorney to turn over copies of the file, less
the attorney's work product, to each client; and to notify them that the inquiring attorney will retain the
original file in escrow until Client A and Client B notify him/her as to the agreed upon recipient, or until a
court renders instructions. See R.I. Sup. Ct. Ethics Advisory Panel Op. 91-2 (1991). The inquiring
attorney's response to Client B relative to Client A's file in the separate matter is appropriate and is
consistent with his/her obligations of confidentiality under Rule 1.6.