I represented two co-insureds in a case and it's over. One wants the file, the other wants me to keep it, and the insurer wants me to keep it too. Who gets the file and who pays for copies or shipping?

Plain-English summary

An insurance company retained the inquiring attorney to represent two insureds, Client A and Client B, in a civil action. After the case concluded, Client A asked the attorney to send her the file, Client B asked the attorney to retain it, and the insurer separately asked the attorney to retain it too. The file ran to thousands of pages, and the insurer had paid all litigation fees and costs, including costs of obtaining transcripts and documents from third parties. The attorney asked the panel what to do.

The panel started from Rule 1.16(d), which requires a lawyer, on termination of a representation, to take reasonably practicable steps to protect a client's interests, including surrendering papers and property to which the client is entitled. Citing its own prior opinions, the panel reiterated that a client file is the client's property (Op. 90-38) and that a client is entitled to the contents of the file excluding the lawyer's work product (Op. 92-88). It also pointed to Op. 2000-6, where, in a joint husband-and-wife representation, the panel had directed the lawyer to give each spouse a copy of the joint file and retain the original until the spouses agreed who would get it.

Applying that framework, the panel concluded that since both Client A and Client B are entitled to the file and there is only one original, the attorney's Rule 1.16(d) obligation is satisfied by making a copy and either keeping the copy for Client B while giving the original to Client A, or the reverse. On costs, the panel held the attorney may not charge either client for copying the file, citing Op. 96-35's holding that an attorney may not charge for time or costs in preparing client files for transfer, though the attorney may make photocopies for the attorney's own files at the attorney's own expense. On shipping and mailing costs, the panel reasoned that where a client cannot retrieve the file in person, it is reasonable for the lawyer, holding property that belongs to the client, to bear that cost, and that a lawyer is well positioned at the outset of a representation to define these obligations by agreement. Absent such an agreement, the panel concluded the attorney may not seek payment from the client for mailing or shipping costs, while noting that electronic transmission or disk copies are options that can address cost concerns.

In practice

The opinion holds that, under the Rhode Island rules as they stood at the time of the opinion, where two jointly represented clients give conflicting instructions about a single original file, the lawyer's Rule 1.16(d) obligation is fulfilled by providing one client the original and the other a copy. The lawyer may not charge either client for the cost of copying the file, and absent a prior agreement allocating the cost, the lawyer may not charge for mailing or shipping the file to a client either.

Common questions

Q: My two clients from the same case want different things done with the file now that it's over. Do I have to pick a side?

A: No. The opinion holds both clients are entitled to the file, and the lawyer's obligation under Rule 1.16(d) is satisfied by giving one client the original and making a copy for the other, in either order.

Q: Can I bill either client for the cost of copying the file?

A: No. The opinion holds the lawyer may not charge the clients for the costs of copying the file, though the lawyer may make copies for the lawyer's own records at the lawyer's own expense.

Q: One client lives out of state and wants the file shipped. Can I charge for postage or courier costs?

A: Only if there is an agreement covering it. Absent an agreement defining who bears mailing or shipping costs, the opinion holds the lawyer may not seek payment from the client for those costs, though the lawyer may address the concern by scanning and transmitting the file electronically or copying it to a disk.

Q: Does it matter that the insurer, who paid for the litigation, also wants the file kept and might have its own interest in it?

A: The opinion does not treat the insurer's preference as controlling the analysis; it resolves the inquiry based on the two clients' respective entitlement to the file under Rule 1.16(d) without separately addressing the insurer's request.

Background and rules framework

The opinion applies Rhode Island Rule 1.16(d) (Declining or Terminating Representation), which requires a lawyer, on termination of a representation, to take steps reasonably practicable to protect a client's interests, including surrendering papers and property to which the client is entitled. The panel's framework treats the client file as the client's property, drawing on its own prior opinions establishing that principle and addressing cost allocation for copying and delivering files.

Citations and references

Rules of Professional Conduct:

• MR 1.16(d) (surrendering papers and property to which the client is entitled on termination)

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• RI Ethics Advisory Panel Op. 90-38 (1990): a client file is the property of the client.
• RI Ethics Advisory Panel Op. 92-88 (1993): a client is entitled to the contents of the file excluding the attorney's work product.
• RI Ethics Advisory Panel Op. 2000-6 (2000): in a joint husband-and-wife representation, both clients are entitled to the joint file; the lawyer should give copies to each and retain the original pending their agreement.
• RI Ethics Advisory Panel Op. 96-35 (1996): an attorney may not charge for time or costs in preparing client files for transfer.

See also

• ABA Formal Op. 471: Surrendering the Client File
• Alabama Ethics Op. 1986-02: Client File Ownership and the Attorney's Lien
• Alaska Bar Ethics Op. 2004-1: Withholding Expert Reports

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%202010-06.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. 2010-06
                             Issued October 18, 2010

Facts

    An insurance company retained the inquiring attorney and his/her law firm to

represent two insureds in a civil action. At the conclusion of the case, Client A asked the
inquiring attorney to send her/him the file. Client B requested that the inquiring attorney
retain the file. The insurer has also requested that the inquiring attorney retain the file. The
inquiring attorney states that there are "thousands of pages of documents," and that the insurer
paid all litigation fees and all costs including costs to obtain transcripts and documents from
third parties. The inquiring attorney seeks guidance on the proper disposition of the clients'
file.

Issue Presented

    The inquiring attorney asks what his/her ethical responsibilities are with respect to

returning the clients' file when faced with conflicting instructions, and who bears the costs of
copying and shipping the files.

Opinion

    Pursuant to Rule 1.16(d), Client A and Client B are both entitled to the joint file; the

inquiring attorney's obligations are fulfilled by providing one client with a copy and the other
client with the original file; the inquiring attorney may not charge the clients for the costs of
copying the file; and absent an agreement to the contrary, the inquiring attorney may not
charge the clients for the costs of shipping or mailing the client file.

Reasoning

   Upon termination of a representation, Rule 1.16(d) requires a lawyer to surrender

papers and property to which the client is entitled. Rule 1.16(d) states as follows.

           (d) Upon termination of representation, a lawyer shall take
           steps to the extent reasonably practicable to protect a client's
           interests, such as giving reasonable notice to the client, allowing
           time for employment of other counsel, surrendering papers and
           property to which the client is entitled and refunding any
           advance payment of fee or expense that has not been earned or
           incurred. The lawyer may retain papers relating to the client to
           the extent permitted by other law.

   A client-file is the property of the client. See R.I. Sup. Ct. Ethics Advisory Panel Op.

90-38 (1990). A client is entitled to the contents of the client's file excluding the attorney's
work product. R.I. Sup. Ct. Ethics Advisory Panel Op. 92-88 (1993).
Final Op. 2010-06
Page 2

            In Rhode Island Supreme Court Ethics Advisory Panel Opinion 2000-6 (2000), the
    Panel concluded that in a joint representation of a husband and wife, both clients were entitled
    to the joint file. The Panel advised the inquiring attorney to turn over copies of the joint file
    to each client, and to retain the original file until the clients reached an agreement about which
    one would receive the original. Id.

           In the instant inquiry, both Client A and Client B are entitled to the file. There being
    but one original, the inquiring attorney's obligation under Rule 1.16(d) is fulfilled by making
    a copy of the file, and then either retaining the copy at his /her law office for Client B and
    providing the original to Client A; or by retaining the original file for Client B and providing a
    copy to Client A.

            The inquiring attorney next asks who should pay the costs of copying the clients' file.
    The inquiring attorney may not charge the clients for the costs of copying the clients' file.
    See R.I. Sup. Ct. Ethics Advisory Panel Op. 96-35 (1996) (attorney may not charge for time
    or costs in preparing client files for transfer.) The Panel has stated:

                   It would be unethical under the Rules of Professional Conduct
                   for the inquiring attorney to charge the client for either time or
                   costs relating to the transfer of documents and property to
                   which the client is entitled in the first instance. The inquiring
                   attorney may produce photocopies of the documents for his/her
                   own files at his/her own expense. Id.

             Lastly, the inquiring attorney asks who should pay for the costs of mailing or shipping
    the clients' file to the client. The Rules of Professional Conduct are rules of reason. Where a
    client lives out-of-state, is ill, or is otherwise unable to retrieve the client's file from a
    lawyer's office, the Panel believes it is reasonable that the lawyer, having possession of
    property which belongs to the client, bear the responsibility, and the costs, of transferring the
    file to the client. Moreover, a lawyer is in the best position at the outset of a representation to
    define the obligations relating to the disposition of a client's file upon termination of the
    representation. In the absence of an agreement that defines the financial obligations for
    mailing or shipping a client's file, the Panel is of the opinion that the attorney may not seek
    payment for those costs from the client. The Panel notes that there are options that may
    address concerns about costs of shipping and delivery, such as scanning the file and
    transmitting it electronically to the client, or copying the file to a disk and mailing the disk to
    the client.

             Accordingly, the Panel concludes that Client A and Client B are both entitled to the
    joint file; that the inquiring attorney's obligations are fulfilled by providing one client with a
    copy and the other client with the original file; that the inquiring attorney may not charge the
    clients for the costs of copying the file; and that absent an agreement to the contrary, the
    inquiring attorney may not charge the clients for the costs of shipping or mailing the client
    file.