I did a title report for a lender. A third party bought the loan and now demands my whole file, including my own abstracts and charts. Are they entitled to it?

Plain-English summary

The inquiring attorney compiled a title report for an out-of-state lending institution and, while drafting it, prepared abstracts and charts for the attorney's own benefit. The attorney forwarded a title report to the lender for use in a possible foreclosure proceeding. Soon after, the attorney was informed that a third party had purchased the loan, and through counsel the third party demanded the entire contents of the attorney's file. The attorney asked whether the third party is entitled to the entire file, including the abstracts and charts prepared for the attorney's own benefit.

The panel explained that upon withdrawal or termination of representation a client is entitled to the papers and property belonging to that client, citing Rule 1.16(d), and that the panel believes the client is entitled to the contents of the file excluding the attorney's work product, citing the ABA/BNA Lawyer's Manual on Professional Conduct, 91:2211 (1987).

The panel noted, however, that the client had not requested the attorney to release anything; rather, the third party, with which no attorney-client relationship exists, had demanded the papers. The Rules of Professional Conduct do not require the attorney to release those papers, and Rule 1.6 would prohibit disclosure without the client's consent. The panel added that Rule 2.3 ("Evaluation for Use by Third Persons") provides that, except as disclosure is required in connection with a report of an evaluation, information relating to the evaluation is otherwise protected by Rule 1.6, and that the comments to Rule 2.3 describe an opinion concerning the title of property rendered for the information of a prospective purchaser or lender. Such information cannot be given out without the consent of the third party.

In practice

Under this opinion, a lawyer who prepared a title-report evaluation for a lender is not required to hand the file to a later third-party loan buyer who has no attorney-client relationship with the lawyer, and Rule 1.6 bars release without consent. The opinion also confirms that, even as to the client, work product is excluded from what the client is entitled to receive under Rule 1.16(d), and that evaluation information is protected under Rule 2.3.

Common questions

Q: Does a third party who bought the loan get my whole file?

A: Per the opinion, no; the third party has no attorney-client relationship with the attorney, the Rules do not require release, and Rule 1.6 would prohibit it without consent.

Q: What is a client entitled to on termination?

A: Per the opinion, under Rule 1.16(d) a client is entitled to the papers and property belonging to the client, but the panel believes that excludes the attorney's work product.

Q: How does Rule 2.3 affect a title-report evaluation?

A: Per the opinion, Rule 2.3 provides that, except as disclosure is required in connection with a report of the evaluation, information relating to the evaluation is otherwise protected by Rule 1.6, and cannot be given out without consent.

Background and rules framework

The opinion applies Rhode Island Rules 1.16(d) (return of client papers and property on termination), 1.6 (confidentiality of information), and 2.3 (evaluation for use by third persons), corresponding to the same-numbered Model Rules, and cites the ABA/BNA Lawyer's Manual on Professional Conduct for the work-product exclusion. The panel distinguished a client's entitlement to the file (minus work product) from a non-client third party's demand, which the Rules do not compel and Rule 1.6 forbids absent consent.

Citations and references

Rules of Professional Conduct:

• MR 1.16(d) (return of papers and property on termination)
• MR 1.6 (confidentiality of information)
• MR 2.3 (evaluation for use by third persons)
• RI RPC 1.16(d), 1.6, 2.3; comments to Rule 2.3

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• ABA/BNA Lawyer's Manual on Professional Conduct, 91:2211 (1987): a client is entitled to the file excluding the attorney's work product.

See also

• RI EAP Op. 90-19: Expert-Witness Identities Are Attorney Work Product Not Owed to a Discharging Client
• RI EAP Op. 92-49: Must Protect Client Files When the Court Denies Withdrawal
• RI EAP Op. 91-02: Disposition of a Joint Adoption Client File in a Divorce Dispute

Currency note

This opinion was issued in early 1993 (Opinion 92-88, issued March 15, 1993), after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rules 1.16, 1.6, and 2.3 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, which amended the confidentiality rule and renumbered the evaluation and declining/terminating-representation rules. 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.

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%2092-88.pdf

Original opinion text

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

ETHICS ADVISORY PANEL
Opinion 92-88, Request #316
Issued March 15, 1993

An attorney seeks Panel advice with regard to the following situation. The inquiring attorney compiled a title report for an out of state lending institution. During the course of drafting this report, the attorney prepared abstracts and charts for the attorney's own benefit. The attorney forwarded a title report to the lender, for use in a possible foreclosure proceeding. Soon thereafter, the attorney was informed that a third party purchased the loan. Through counsel, the third party demanded the entire contents of the inquiring attorney's file. The attorney asks whether the third party is entitled to his entire file, including the abstracts and charts prepared for the attorney's own benefit.

Upon withdrawal or termination of representation, a client is entitled to the "papers and property" belonging to that client. See Rule 1.16(d). The Panel believes that the client is entitled to the contents of the file excluding the attorney's work product. See, ABA/BNA Lawyer's Manual of Professional Conduct, 91:2211 (1987).

It is the Panel's understanding that the client has not requested the attorney to release anything. Rather, the third party, with which no attorney/client relationship exists, has demanded the papers. The Rules of Professional Conduct do not require the attorney to release those papers. Indeed, Rule 1.6 would prohibit this without the client's consent.

In addition Rule 2.3 entitled "Evaluation For Use By Third Persons" states that:

(b) Except as disclosure is required in connection with a report of an evaluation, information relating to the evaluation is otherwise protected by Rule 1.6.

The comments to Rule 2.3 state that "An evaluation may be performed at the client's direction but for the primary purpose of establishing information for the benefit of third parties; for example, an opinion concerning the title of property rendered at the behest of a vendor for the information of a prospective purchaser, or at the behest of a borrower for the information of a prospective lender." Such information cannot be given out without the consent of the third party.