When a former criminal client asks for their entire file, what must a Texas lawyer hand over, who pays for copies and delivery, and in what format must it be provided?
Texas Ethics Opinion 657: Returning a Criminal Client's File, Costs, and Format
Short answer: Per the Committee, the file (notes and work product included) is the client's property and must be made available on request, except material barred by statute, court order, or duties to others; Code of Criminal Procedure art. 39.14 discovery (other than the defendant's own statement) and art. 35.29 juror information must be withheld or redacted, the lawyer bears the cost of any copy it keeps and of converting inaccessible formats, and the client bears off-site delivery costs.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the Texas Disciplinary Rules of Professional Conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.
Plain-English summary
The opinion addresses a lawyer who represented a client in a criminal matter that ended in conviction, with all appeals exhausted. The former client requests the entire file, and the lawyer asserts no lien. The opinion answers three questions: what must be delivered, who pays, and in what form.
On what must be delivered, the Committee restates the principle from Opinion 627 (April 2013) that documents received from the client or generated in the representation, including notes and work product, are the client's property and must be transferred on request unless the lawyer may retain them by law without prejudicing the client. Drawing on Opinion 570 (May 2006), the opinion recognizes exceptions arising from the lawyer's duties to others or the client: notes containing information under a protective order, notes whose disclosure would breach a duty to another person, notes that could seriously harm a mentally ill client, and material revealing other clients' identities or representations (such as conflict-check results). Texas law adds further limits in a criminal file: under Code of Criminal Procedure art. 39.14(f), defense counsel may not give the defendant a copy of discovery produced under art. 39.14(a) (other than the defendant's own statement) or disclose certain personal witness information, so such material must be withheld or redacted; and art. 35.29 bars disclosing personal juror information except as the court permits.
On cost and form, because the file belongs to the client, the lawyer bears the expense of any copy it chooses to keep, absent agreement otherwise. The lawyer may tender the file for pickup at the office during business hours; absent agreement, the client bears the cost of delivery or shipping elsewhere (citing Opinion 627). The lawyer may provide the file as maintained, or convert it to paper or a reasonably accessible electronic format; if part of the file is in a special format not reasonably accessible to an ordinary client, the lawyer must bear the cost of converting it or printing it in a readable form. Material with unique or significant value in its original form should be returned in that original form.
In practice
Under this opinion, and under the Texas rules as they stood at the time of the opinion, a lawyer responding to a former criminal client's request for the file must make the file available (notes and work product included) at the lawyer's office, while withholding or redacting material barred by statute, court order, or duties to others. The opinion holds that art. 39.14(a) discovery (other than the defendant's own statement) and art. 35.29 juror information must be withheld or redacted, that the lawyer pays for any copy it keeps and for converting formats the client cannot reasonably access, and that the client pays for delivery to a location other than the lawyer's office absent a contrary agreement.
Common questions
Q: Does a former criminal client's file include the lawyer's notes and work product?
A: Yes. Per Opinion 657, documents generated in the representation, including notes and work product, are the client's property and must be made available, subject to the stated exceptions.
Q: Can I give my convicted client the discovery the State produced?
A: Not all of it. The opinion states that under Code of Criminal Procedure art. 39.14(f) the lawyer may not deliver discovery produced under art. 39.14(a) (other than the defendant's own statement) and must redact information that must be withheld, including certain personal witness information; art. 35.29 juror information must also be removed.
Q: Who pays for copying and delivering the file?
A: The opinion holds the lawyer bears the cost of any copy it keeps and of converting formats the client cannot reasonably access, while the client bears the cost of delivery or shipping to a location other than the lawyer's office absent an agreement otherwise.
Q: In what format must the file be provided?
A: The opinion says the lawyer may provide the file as maintained or convert it to paper or a reasonably accessible electronic format; material with unique or significant value in its original form should be returned in that original form.
Background and rules framework
The opinion addresses a lawyer's duty to return a former client's file. It does not cite a numbered disciplinary rule; it relies on prior Texas Professional Ethics Committee opinions (627 and 570) and on Texas statutory limits in the Code of Criminal Procedure (art. 39.14 on discovery and art. 35.29 on juror information).
Citations and references
Statutes:
- Tex. Code Crim. Proc. art. 39.14(a), (f) (discovery; limits on disclosure to the defendant)
- Tex. Code Crim. Proc. art. 35.29 (disclosure of personal juror information)
Other opinions cited:
- Texas Professional Ethics Committee Opinion 627 (April 2013): closed client files; allocation of costs
- Texas Professional Ethics Committee Opinion 570 (May 2006): exceptions to the former client's right to file contents
See also
- ABA Formal Op. 471: Surrendering Papers and Property to a Former Client
- California Op. 1992-127: Criminal Defense Lawyer's Duty to Turn Over the File
Source
- Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-657/
- Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_657.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
QUESTION PRESENTED
What documents and information must be delivered by a lawyer to a former client convicted of a criminal offense when requested by that former client?
Who bears the costs of delivering the documents and information to the former client?
In what form must the documents and information be delivered?
STATEMENT OF FACTS
A lawyer represented a former client in a criminal matter in which the client was convicted. All appeals in the matter have been exhausted. The former client requests the lawyer to furnish the entire contents of the lawyer's file regarding the matter. The lawyer is not claiming a lawyer's lien or a similar right over the file contents.
DISCUSSION
In general, the documents, papers and other information received from a client or received or generated in the course of representing the client (including the lawyer's notes and work product) are the property of the client and must be transferred to a former client on request unless the lawyer is permitted by law to retain those documents and can do so without prejudicing the interests of the client in the subject matter of the representation. Professional Ethics Committee Opinion 627 (April 2013). As Opinion 570 (May 2006) recognized, exceptions to the former client's right to some of the contents of a client's file may arise from the lawyer's duties to others or the client. The exceptions noted in Opinion 570 include:
". . . notes that contain information obtained in discovery subject to a court's protective order forbidding disclosure of the information to the client, notes where the disclosure would violate the lawyer's duty to another person, and notes containing information that could reasonably be expected to cause serious harm to a mentally ill client."
These exceptions would include documents or information that might reveal the identity of the lawyer's other clients or the nature of the other clients' representations, such as the results of internal conflict of interest checks and information about other clients contained in "forms" or pre-existing research memoranda placed in the former client's file during the representation.
A lawyer's duty to turn over file materials to a former client is also subject to exceptions created by Texas law. In particular, the lawyer's file in a criminal representation may contain documents and information produced by the state pursuant to Tex. Code Crim. Proc. art. 39.14(a). Article 39.14(f) prohibits defense counsel from providing a copy of such documents to the defendant (other than the defendant's own statement). Article 39.14(f) also prohibits defense counsel from disclosing to the defendant certain personal information regarding witnesses. Accordingly, a lawyer may not deliver to a former client documents provided to the lawyer pursuant to article 39.14(a) (other than the defendant's own statement). Further, if the lawyer's file materials (including notes) contain information that must be withheld from the defendant under article 39.14(f), the lawyer must redact that information before turning over the file to the former client.
Similarly, Tex. Code Crim. Proc. art. 35.29 prohibits the disclosure of personal information about jurors except as permitted by the court upon hearing. A lawyer responding to a former client's request for the client's file must therefore ensure that any such information is removed before turning over the file.
Subject to certain exceptions such as those discussed above, the client's file must be surrendered to the former client by making it available for the former client or a designated representative of the former client. Because the file belongs to the former client, if the lawyer desires to retain a copy of documents and information in the file, that expense must be borne by the lawyer in the absence of an agreement otherwise. The lawyer may tender the client's file to be picked up during ordinary business hours at the lawyer's office. In the absence of an agreement otherwise, the former client bears the expense of delivering or shipping the file to another location. See Opinion 627 (April 2013) (costs of complying with a client's request concerning closed client files beyond what is required by the principles of the Texas Disciplinary Rules of Professional Conduct are borne by the client).
In most cases, the client's file will consist of paper documents, electronically stored documents or information, or some combination of the two. The lawyer may generally provide such portions of the client's file to the former client in any format that is reasonably accessible to the ordinary client. The lawyer may provide the file as it is maintained, or convert (at the lawyer's expense) some or all of it to paper or to a reasonably accessible electronic format for delivery to the client. However, if some of the information in the file is maintained in a special format that is not reasonably accessible to the ordinary client, the lawyer must bear the cost of converting the information to a reasonably accessible format or print the information in a format that can be read by the client. If the file contains material that has unique or significant value in the form originally acquired by the lawyer, such material should be returned to the client in its original form.
CONCLUSION
In general, the documents, papers and other information received from a client or received or generated in the course of representing the client, including work product and notes, are the property of the client. When a lawyer receives a request for those materials from a former client, the lawyer must make those materials available for delivery to the former client, except as prohibited by statute, court order or the lawyer's duties to third parties or the client, or unless the lawyer is permitted by law to retain those documents and can do so without prejudicing the interests of the client in the subject matter of the representation.
A lawyer must make the client's file available for transfer to the client or a designated representative at the lawyer's office. The lawyer may require the client to pay any delivery or shipping expenses associated with delivering the file to the former client at a location other than the lawyer's office. If the lawyer deems it necessary to retain a copy of the file, that expense will be borne by the lawyer in the absence of an agreement otherwise.
The lawyer may provide the client's file in the form in which it is maintained, or convert some or all of it to paper or to a reasonably accessible electronic format for delivery to the client. However, if some of the information in the file is maintained in a special format that is not reasonably accessible to the ordinary client, the lawyer must bear the cost of converting the information to a reasonably accessible format, or print the information in a format that can be read by the client. If the client's file contains material that has unique or significant value in the form originally acquired by the lawyer, such material should be returned to the client in its original form.
Tex. Comm. On Professional Ethics, Op. 657 (2016)