Another attorney sent me a form letter asking for a copy of my client's file for a 'second look,' but my client isn't discharging me. What am I required to do, and can I charge for copying it?

Plain-English summary

An attorney representing a client, Mr. X, in connection with a recent accidental injury received a form letter from the office of Attorney Y asking him to forward a copy of his file on Mr. X's accident to Attorney Y's office for "review." It appeared from the inquiring attorney's letter and accompanying exhibits that Mr. X did not wish to discharge him and retain Attorney Y instead. The attorney asked the panel what his responsibilities were upon receiving such a request and what the ramifications were for the attorney-client relationship.

The panel quoted Rule 1.1, which requires a lawyer to provide competent representation involving the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation, and Rule 1.2, which requires a lawyer to abide by a client's decisions concerning the objectives of representation and to consult with the client on the means to pursue them. The panel held that Mr. X's request that Attorney Y review his file is a "client decision" within the meaning of Rule 1.2, and that the inquiring attorney has an obligation to make available copies of documents in Mr. X's file to Attorney Y, though documents representing the inquiring attorney's own work product need not be made available. Because Mr. X was not discharging the inquiring attorney, his continuing obligation to provide competent representation under Rule 1.2 required him to keep pursuing settlement opportunities on Mr. X's behalf. It was appropriate for the inquiring attorney to charge either Attorney Y or Mr. X for the cost of copying the file and for the time spent removing work product from it, just as he would for preparing file portions for any other outside professional review the attorney and client agreed was appropriate. The panel suggested the inquiring attorney could either copy the file, minus work product, and send it to Attorney Y, or make the file available in his office at a mutually convenient time for Attorney Y to review and request copies from. The panel added that once the file was screened once, a later request that it be reviewed by a different outside attorney could likely be handled with little additional screening time. The panel declined to determine, either in this case or generally, whether the attorney-client relationship suffers once a client requests outside review of the file, noting it is possible to imagine a situation where an intervening attorney's input diminishes a client's faith in original counsel, and equally possible to imagine a situation where it heightens the client's appreciation of that counsel.

Currency note

This opinion was issued in July 1989, after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rules 1.1 and 1.2 as originally adopted. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process. 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 mentioned here.

Common questions

Q: Do I have to send my client's file to another attorney the client wants a second opinion from, even if I'm not being fired?

A: Yes, according to this opinion. The panel held that the client's request for outside review is a "client decision" under Rule 1.2, and the inquiring attorney has an obligation to make copies of the file available to the second attorney, minus work product.

Q: Can I charge for copying the file or my time screening out work product?

A: Yes. The panel held it appropriate for the inquiring attorney to charge either the second attorney or the client for the cost of copying the file and for the time spent removing work product, just as for any other outside professional review.

Q: Does letting another attorney review my client's file mean I'm out of the case?

A: Not under this opinion's facts, since the client was not discharging the inquiring attorney. He remained obligated to continue providing competent representation under Rule 1.2, including pursuing settlement opportunities on the client's behalf.

Q: Will requesting outside review of a file always harm the attorney-client relationship?

A: The panel declined to decide this question generally, observing it is possible to imagine review diminishing a client's faith in original counsel, and equally possible to imagine it heightening the client's appreciation of that counsel.

Background and rules framework

The opinion applies Rule 1.1 (competence) and Rule 1.2 (scope of representation) of the Rhode Island Rules of Professional Conduct, as adopted effective November 15, 1988, to an attorney's obligations when a current client, without discharging the attorney, asks that a copy of the client's file be sent to a second attorney for review.

Citations and references

Rules of Professional Conduct:

• MR 1.1 (competence)
• MR 1.2 (scope of representation)
• RI RPC 1.1 and RPC 1.2, as adopted November 15, 1988

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• RI EAP Opinion 2010-06: Joint Clients With Conflicting Instructions on the File Are Both Entitled to It, and the Lawyer May Not Charge for Copying or, Absent Agreement, Shipping
• RI EAP Opinion 2002-04: Rule 4.2 Bars Contacting a Discharged Client About the Discharge or File Transfer

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%2089-13.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

DIGEST OF ETHICS ADVISORY PANEL
OPINION #89-13, REQUEST #59
Issued July 20, 1989

An attorney seeks Panel advice as to what his response ought to be to a request concerning his client. He advises the Panel that he represents a client, Mr. X, in connection with a recent accidental injury. He states that some time after this representation commenced he received a form letter from the office of Attorney Y asking him to forward a copy of his file on Mr. X's accident to the law offices of Attorney Y for "review". It appears from the inquiring attorney's letter and its accompanying exhibits that Mr. X does not wish to discharge him and retain Attorney Y. The attorney asks the Panel what his responsibilities are upon receipt of such a request and what the ramifications of the request are for the attorney-client relationship.

Rule 1.1, titled "Competence," provides:

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Rule 1.2, titled "Scope of Representation" provides, in pertinent part, that:

A lawyer shall abide by a client's decisions concerning the objectives of representation, and shall consult with the client as to the means by which they are to be pursued.

Mr. X's request that Attorney Y review his file is a "client decision" within the meaning of Rule 1.2. The Panel takes the position that the inquiring attorney has an obligation to make available copies of documents in Mr. X's file to Attorney Y. Documents in the file which represent the inquiring attorney's work product need not, of course, be made available to Attorney Y.

Since Mr. X is not discharging the inquiring attorney, the inquiring attorney's request for advice must be considered in light of his obligation to continue to provide the competent representation referenced in Rule 1.2. Thus it is appropriate and necessary for him to continue to pursue settlement opportunities on Mr. X's behalf. It is also appropriate for the inquiring attorney to charge either Attorney Y or Mr. X for the cost of copying the file, just as he would in preparing portions of a file for any other outside professional review which he and his client concluded was appropriate.

The inquiring attorney may wish to simply copy Mr. X's file, minus documents which are his work product, and send it to Attorney Y. An alternative would be for the inquiring attorney to make the file available in his office at a mutually convenient time. Attorney Y could then review the file, excluding any work product, and request copies of documents if he wished. The inquiring attorney will necessarily have to spend some amount of time removing his work product from the file. It is not inappropriate for him to charge either Attorney Y or Mr. X for the time involved. The Panel assumes that once this screening is accomplished, a subsequent request from Mr. X that his file be reviewed by a different outside attorney could be accomplished with little of the inquiring attorney's time required to screen out his work product.

The only question remaining unanswered is whether or not the attorney-client relationship has suffered once a client requests review of his or her file by an outside attorney. It is beyond the purview of the Panel to make such a determination either in the case presented or any other. It is possible to imagine a situation where an intervening attorney's words diminish a client's faith in his original counsel. But it is also possible to imagine a situation where a client's contact with an intervening attorney will ultimately serve merely to heighten the client's appreciation of his original counsel.

Ethics Advisory Panel advice is protective in nature. There is no requirement that an attorney abide by a Panel opinion, but if he or she does, he or she is fully protected from any charge of impropriety.