After my client discharged me, its asset manager asked me to retrieve and hand over my files for new counsel. May I bill for the time to prepare the files for transfer, and may I file an attorney's lien for my work on the accounts I never collected?

Plain-English summary

The inquiring attorney had represented various credit unions in collecting delinquent accounts. After the 1990 collapse of the Rhode Island Share and Deposit Indemnity Corporation, several credit unions closed, and the attorney continued to work on the accounts under the supervision of the statutory receiver, the Rhode Island Depositors Economic Protection Corporation (DEPCO), and a company that managed the assets. Some accounts were paid; others were uncollectible and placed in storage. The asset-management company later asked the attorney to retrieve the account files, including files inactive before 1990, for transfer to new counsel. The attorney stated that on the accounts he did not collect he had expended considerable time obtaining judgments and information useful to new counsel, and asked (a) whether he could charge the management company for the time to retrieve and prepare the files for transfer, and (b) whether he was entitled to an attorney's lien for the reasonable value of services performed on the uncollected accounts.

The Panel concluded that the attorney may not charge for his time or costs in preparing the client's files for transfer after discharge, but is entitled to file an attorney's lien for the reasonable value of services performed prior to termination. Under Rule 1.17(d), a terminated attorney must surrender papers and property to which the client is entitled. The Panel assumed the attorney had been discharged by his client DEPCO (not indirectly through the management company) and noted that the request for the files came from the management company, not DEPCO; it observed that Rule 1.6 (confidentiality) would prohibit releasing the files to the management company without DEPCO's consent.

The Panel explained that a client is entitled to the contents of the client's file excluding the attorney's work product, and that it would be unethical for the 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 attorney may make photocopies for his own files at his own expense. As to the lien, the Panel pointed to its General Informational Opinion No. 4 (May 23, 1991), which concluded that the proper measure of recovery for a discharged attorney is the reasonable value of the services performed for the client prior to dismissal, and noted that Rhode Island case law does not distinguish between contingency-fee and fixed-fee contracts in setting that measure.

Currency note

This opinion was issued in 1996 (Opinion 96-35, issued November 14, 1996), after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rules 1.17 and 1.6 as they stood at the time. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process, which renumbered and amended these termination and confidentiality rules. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Common questions

Q: Can a discharged lawyer bill for the time to gather and transfer the client's file?

A: No. The Panel held it would be unethical to charge the client for time or costs relating to the transfer of documents and property to which the client is entitled; the lawyer may make photocopies for his own files at his own expense.

Q: What part of the file must be surrendered?

A: Under Rule 1.17(d) the lawyer must surrender the papers and property to which the client is entitled; the Panel noted the client is entitled to the contents of the file excluding the attorney's work product.

Q: Can the lawyer hand the files to the asset manager who asked for them?

A: Not without the client's consent. The Panel observed that Rule 1.6 would prohibit releasing the files to the management company without DEPCO's (the client's) consent.

Q: Can the discharged lawyer still recover for work already done?

A: Yes. The Panel said the lawyer may file an attorney's lien for the reasonable value of services performed before discharge, the measure set out in its General Informational Opinion No. 4.

Background and rules framework

The opinion interprets Rhode Island Rule of Professional Conduct 1.17(d) (protecting a client's interests on termination of representation, including surrendering papers and property to which the client is entitled, the Rhode Island counterpart to Model Rule 1.16(d)) together with Rule 1.6 (confidentiality; Model Rule 1.6), which barred release of the files to a non-client without the client's consent. The Panel drew the measure of a discharged attorney's recovery from its General Informational Opinion No. 4 and Rhode Island case law.

Citations and references

Rules of Professional Conduct:

• MR 1.16 / RI RPC 1.17(d) (protecting client interests on termination; surrendering papers and property)
• MR 1.6 / RI RPC 1.6 (confidentiality; no release to a non-client without consent)

Cases:

• Lisker v. Monti, 74 R.I. 310, 60 A.2d 485 (1948), measure of a discharged attorney's recovery
• Lake v. Winfield Fuller Co., 54 R.I. 358, 173 A. 119 (1938), measure of a discharged attorney's recovery

Other opinions cited:

• RI EAP General Informational Opinion No. 4 (May 23, 1991): the proper measure of recovery for a discharged attorney is the reasonable value of services performed before dismissal
• RI EAP Opinion 92-88 (1993): a client is entitled to the contents of the file, excluding the attorney's work product
• RI EAP Opinion 93-84 (1993): the attorney may make photocopies for his own files at his own expense

See also

• RI EAP Opinion 96-33: after discharge a lawyer returns the excess arbitrator fee held in trust under Rule 1.15
• RI EAP Opinion 94-41: co-defendant zoning board members are clients entitled to the file under Rule 1.17

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%2096-35.pdf

Original opinion text

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

ETHICS ADVISORY PANEL
OPINION NO. 96-35, REQUEST NO. 694
Issued November 14, 1996

FACTS:

The inquiring attorney had represented various credit unions in the collection of delinquent accounts. With the collapse of Rhode Island Share and Deposit Indemnity Corporation in 1990, several of the credit unions were closed, after which time, the inquiring attorney continued to work on the accounts under the supervision of the statutory receiver Rhode Island Depositors Economic Protection Corporation (DEPCO) and also under the supervision of a company that managed the assets. Some of the accounts were paid, but others were uncollectible and were placed in storage by the inquiring attorney. The company that manages the assets has recently asked the inquiring attorney to retrieve his/her files on the accounts for transfer to new counsel, including those files that were inactive before 1990. The inquiring attorney states that on those accounts which he/she did not succeed in collecting, he/she expended considerable time in obtaining judgments and other information that will prove useful to new counsel.

ISSUES PRESENTED:

The inquiring attorney asks (a) whether he/she may charge the management company for his/her time involved in retrieving the files and preparing them for transfer and (b) whether he/she is entitled to an attorney's lien for the reasonable value of services performed on those accounts which he/she did not succeed in collecting.

OPINION:

The inquiring attorney may not charge for his/her time or for costs in preparing the client's files for transfer after discharge. The inquiring attorney is entitled to file an attorney's lien for the reasonable value of services performed prior to termination.

REASONING:

An attorney who is terminated is required under Rule 1.17(d) of the Rhode Island Supreme Court Rules of Professional Conduct to surrender papers and property to which the client is entitled. The Panel assumes from the facts that the inquiring attorney has been discharged by his/her client DEPCO, and not indirectly through the management company. The Panel also notes that the request for the client's files has been made by the management company, and not by the attorney's client DEPCO. Rule 1.6 relating to confidentiality would prohibit the inquiring attorney from releasing the client's files to the management company without DEPCO's consent. See Rule 1.6.

Rule 1.17 (d) states:

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.

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). 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. See R.I. Sup. Ct. Ethics Advisory Panel Op. 93-84(1993).

The inquiring attorney may file an attorney's lien with respect to services performed prior to being discharged. The issue as to the amount of the lien was addressed in Ethics Advisory Panel General Informational Opinion No. 4 issued on May 23, 1991. The Panel concluded in that opinion that the proper measure of recovery of damages by a discharged attorney is the reasonable value of the services performed for the client prior to dismissal, citing Lisker_v. Monti, 74 R.I. 310, 60 A.2d 485 (1948) and Lake v. Winfield Fuller Co., 54 R.I. 358, 173 A.119 (1938). The Panel noted that Rhode Island case law does not distinguish between contingency fee contracts and fixed fee contracts regarding the proper measure of recovery for an attorney who is discharged with or without cause prior to final resolution of the subject matter of the representation. R.I. Sup. Ct. Ethics Advisory Panel General Informational Op. No. 4.