My client discharged me after I'd hired and paid for expert witnesses out of pocket in his malpractice case. I gave his new lawyer the expert reports with the experts' names redacted, and I want reimbursement before I release the names. Do I have to turn over the experts' identities under Rule 1.16(d)?

Plain-English summary

The attorney represented the plaintiff, Mr. X, in a medical malpractice case. No written fee agreement was executed, but the attorney recalls advising Mr. X the arrangement would be a standard contingent fee plus costs. While researching and preparing the case, the attorney hired several expert witnesses and obtained written opinions from them, paying for those opinions from his own funds as an advance of costs to be reimbursed at the conclusion of the litigation; Mr. X knew the attorney had hired experts and had advanced those costs. After the attorney completed his research and filed suit, Mr. X discharged him and retained new counsel. The attorney gave the new counsel a copy of the file, including the expert reports, but with the experts' names deleted, and said he would provide the names only if the new attorney or Mr. X reimbursed him for the amounts spent obtaining the opinions. The new attorney refused, stating he would treat the inquiring attorney's costs as a lien on the final recovery, not payable until then. The attorney asked the panel whether he was obligated to provide Mr. X with the experts' names.

The panel quoted Rule 1.16(d), which requires a lawyer, upon termination of representation, to take steps reasonably practicable to protect the client's interests, including surrendering papers and property to which the client is entitled and refunding unearned advance fees. It explained that what "papers and property... the client is entitled [to]" means must be answered by reference to the work product doctrine, quoting Hickman v. Taylor, 329 U.S. 495 (1946), for the rationale that a lawyer must work with a degree of privacy free from unnecessary intrusion by opposing parties, and that recognizing this "work product of the lawyer" as protected serves the historical and necessary way lawyers assemble information, sift relevant from irrelevant facts, and plan strategy without undue interference; the panel also quoted Hickman's warning that failing to recognize this protection would breed inefficiency, unfairness, and sharp practices, demoralizing the profession and poorly serving clients and the cause of justice. The panel then quoted Cabral v. Arruda, 556 A.2d 47 (R.I. 1989), in which the Rhode Island Supreme Court followed Hickman in holding trial preparation material to be the lawyer's qualifiedly immune work product, one purpose of the immunity being to prevent an attorney from "freeloading" on an adversary's work. Applying this doctrine, the panel held that the experts' identities, resulting from the inquiring attorney's own research, are his work product and do not constitute "papers and property to which the client is entitled" within the meaning of Rule 1.16(d).

Currency note

This opinion was issued in May 1990, after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rule 1.16(d) 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: When a client discharges me, must I hand over the identities of expert witnesses I found and paid for during my own case preparation?

A: Not under this opinion. The panel held that the experts' identities resulting from the inquiring attorney's own research are his work product and do not constitute "papers and property to which the client is entitled" within the meaning of Rule 1.16(d).

Q: What legal doctrine determines what "papers and property" a discharged client is entitled to under Rule 1.16(d)?

A: The panel stated the question must be answered by reference to the work product doctrine, citing Hickman v. Taylor and Rhode Island's Cabral v. Arruda.

Q: What is one purpose of the work product doctrine, according to the opinion?

A: The opinion quotes Cabral v. Arruda for the proposition that one purpose of work product immunity is to prevent an attorney from "freeloading" on an adversary's, or in this context a predecessor attorney's, work.

Background and rules framework

The opinion applies Rule 1.16(d) of the Rhode Island Rules of Professional Conduct, as adopted effective November 15, 1988, requiring a lawyer to surrender client-entitled papers and property upon termination, and the work product doctrine as articulated in federal and Rhode Island case law, to an inquiry about whether a discharged attorney must disclose expert witness identities he developed and funded during case preparation.

Citations and references

Rules of Professional Conduct:

• MR 1.16 (declining or terminating representation)
• RI RPC 1.16(d), as adopted November 15, 1988

Statutes:

• None cited.

Cases:

• Hickman v. Taylor, 329 U.S. 495 (1946), cited for the rationale underlying the work product doctrine and the need for lawyers to prepare cases free from undue interference.
• Cabral v. Arruda, 556 A.2d 47 (R.I. 1989), cited for Rhode Island's adoption of Hickman's work product immunity and its purpose of preventing an attorney from "freeloading" on another's work.

Other opinions cited:

• None cited.

See also

• RI EAP Op. 90-13: Discharged Counsel's Lien, Fee

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%2090-19.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 90-19, REQUEST #97
Issued May 31, 1990

An attorney seeks Panel advice as to whether he should provide his former client with certain documents under the circumstances he describes.

The attorney advises the Panel that he was attorney for the plaintiff, Mr. X, in a medical malpractice case. He states that no written fee agreement was executed but that he recalls advising Mr. X that it would be a standard contingent fee arrangement plus costs. The attorney states that in researching and preparing the case he hired various expert witnesses and obtained written opinions from them. He indicates that he paid for the expert opinions from his own funds as an advance of costs to be reimbursed at the conclusion of the litigation. The attorney adds that Mr. X knew that he had hired experts as part of his research and preparation and knew that he had advanced those costs.

The attorney explains that after he had completed his research and filed suit Mr. X discharged him and retained another attorney. The attorney states that he provided Mr. X's new counsel with a copy of the file and included the expert reports, with the experts' names deleted. The attorney adds that he told the other attorney that he would provide him with the names of the experts only if either the other attorney or Mr. X reimbursed him for the amounts he had spent obtaining their opinions. The other attorney refuses to reimburse him, stating that he will consider the inquiring attorney's costs to be a lien on the final recovery, not payable until then. The inquiring attorney asks the Panel whether he is obligated to provide Mr. X with the names of the experts under the circumstances.

Rule 1.16(d) provides:

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 that has not been earned.

The question of what "papers and property . . . the client is entitled [to]" must be answered by reference to the work product doctrine. In Hickman v. Taylor, 329 U.S. 495 (1946) the United States Supreme Court reviewed the rationale underlying the work product doctrine stating:

In performing his various duties, . . . it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client's case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients' interests. This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways -- aptly though roughly termed by the Circuit Court of Appeals in this case as the "work product of the lawyer." 329 U.S. at 510-511, (emphasis added).

The Hickman Court notes that a failure to recognize the protective sphere of the work product doctrine would result in

Inefficiency, unfairness and sharp practices . . . in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served. 329 U.S. at 511.

In Cabral v. Arruda, 556 A.2d 47 (R.I. 1989) the Supreme Court of Rhode Island followed Hickman, stating:

[The Hickman Court] held that trial preparation material is the "work product of the lawyer" and that such "work product" is qualifiedly immune from discovery. One of the purposes of this immunity is to prevent an attorney from "freeloading" on his or her adversary's work. 556 A.2d at 48.

The Panel takes the position that the experts' identities which resulted from the inquiring attorney's research are his work product and, as such do not constitute "papers and property to which the client is entitled" within the meaning of Rule 1.16(d).

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.