When a client hires new counsel and demands the file, must the lawyer hand over everything, including his own work sheets, or may he keep some of it?

Plain-English summary

A lawyer who had represented an individual and corporations in which the individual was the principal stockholder had accumulated voluminous files, including papers belonging to the individual, papers belonging to the corporations, and the lawyer's own letters, briefs, and work sheets. The client said new counsel was being retained and asked that all files be surrendered. The inquiry asked whether the lawyer must deliver the entire set of files, what portion he could retain, and whether he could delay delivery to inventory the contents.

The Committee answered that the lawyer should not be required to deliver his entire set of files upon termination of the professional relationship. He should retain all matters purely personal to him and turn over to the client only those papers that would affect either the rights or the exercise of the rights of the client. The lawyer is privileged to delay delivering items until he has had an opportunity to inventory his files and determine what should be turned over. All answers were unanimous (8-0).

Currency note

This opinion was issued in 1955, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. 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 Treat this page as historical context, not current guidance.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, deadline, or requirement mentioned here.

Common questions

Q: Did the lawyer have to hand over the whole file under this opinion?

A: No. The Committee held he need not deliver his entire set of files; he turns over only papers affecting the client's rights or their exercise (8-0).

Q: Could the lawyer keep his own work sheets?

A: Yes. He should retain matters purely personal to him, which the headnote identifies as work sheets and other related papers that do not affect the client's rights.

Q: Could the lawyer take time to inventory before delivering?

A: Yes. The Committee said he is privileged to delay delivery until he has inventoried the file and determined what should be turned over.

Background and rules framework

The opinion interprets former Texas Canon 7 of the Canons of Ethics of the State Bar of Texas, governing the relationship between attorney and client. The modern analogs are ABA Model Rule 1.16(d) (surrendering papers and property on termination) and Model Rule 1.15 (safekeeping property).

Citations and references

Rules of Professional Conduct:

• MR 1.16 (declining or terminating representation), as the modern analog
• MR 1.15 (safekeeping property), as the modern analog
• Texas Canon 7

See also

• TX Ethics Op. 203: Furnishing Copies From the Client's File
• TX Ethics Op. 245: Compliance on the Client's File

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-118/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_118.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

QUESTION PRESENTED

Facts Χ While acting as counsel for an individual and corporations in which the individual is principal stockholder, an attorney has accumulated voluminous files consisting of papers belonging to the individual, papers belonging to the corporations, and letters, briefs and work sheets prepared by the attorney. The client has advised the attorney that new counsel is being retained and has requested that all files be surrendered.
Must the attorney deliver his entire set of files, including file folders, or may he retain any portion of such files?
If the attorney may retain any portions of such files, which portion may be so retained?
Is the attorney privileged to delay delivering items to individual as and until' attorney has had opportunity to inventory contents of files and make listing thereof?

18 Baylor L. Rev. 242 (1966)

WORK SHEETS
It is proper for an attorney to retain work sheets and other related papers which do not affect a client's rights or their exercise when requested to deliver the client's complete file to newly- retained counsel. He is privileged to make an inventory of the file before he delivers the items.

Canon 7.

The committee is of the opinion that these questions should be answered as follows:
The attorney should not be required to deliver his entire set of files to his client upon termination of the professional relationship.
The attorney should retain within his files all matters purely personal to him and should turn over to the client only those papers which would affect either the rights or the exercise of the rights of the client.
The attorney is privileged to delay delivering items to the client until he has had an opportunity to make an inventory of his files and determine what should be turned over to the client. (8-0)

Tex. Comm. On Professional Ethics, Op. 118 (1955)