When I leave my law firm, can I copy and keep my clients' documents (for example to reuse as forms) even when the client isn't following me to the new firm?
Texas Ethics Opinion 670: Copying and Keeping Client Documents When Leaving a Firm
Short answer: Per the Committee, a departing lawyer may, at the lawyer's own expense, copy and retain documents from matters the lawyer personally handled (without prior-firm or client consent, if responsive to file requests), but must protect the confidential information: not sharing it with anyone at the new firm who did not represent the client, and using documents as forms only after deleting all confidential information (and not at all where the document is so customized that any use would reveal it).
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 considers a lawyer who, just before leaving for a new firm, makes paper and electronic copies of client documents from matters the lawyer personally handled and takes them to the new firm. The old firm demands their return. The client is not following the lawyer, and no continuing representation is contemplated; the lawyer wants to keep the documents to use as "forms."
Under Rule 1.05, a lawyer must protect a client's confidential information, broadly defined; documents in a client's file, paper or electronic, generally belong to the client and are part of that confidential information (citing Opinions 657 and 627). The Committee concludes a departing lawyer who authored or had access to documents during personal representation of a client may, at the lawyer's expense, make and retain copies, subject to important obligations. Neither the prior firm's nor the former client's consent is required, so long as the lawyer stays reasonably responsive to the former client's requests for copies; the rules do not bar copying and keeping a file copy at the lawyer's expense.
The retained copies remain subject to confidentiality. The lawyer must protect them from unauthorized disclosure or use for as long as they exist in any form, and must not share them with anyone at the new firm who did not also personally represent the same client in the same matter, absent client consent or a Rule 1.05 exception; paper copies must be stored securely and accessible only to the departed lawyer, and electronic copies likewise must not be accessible to others at the new firm absent consent. As for using documents as forms, the lawyer must delete all of the former client's confidential information before sharing forms with anyone not authorized to access it; and if a document is so customized that any use as a form, even after deletion, would reveal the former client's confidential information, that use is improper.
In practice
Under this opinion, and under the Texas rules as they stood at the time of the opinion, a departing lawyer may copy and keep, at the lawyer's own expense, documents from matters the lawyer personally handled, without needing the prior firm's or client's consent, provided the lawyer remains responsive to the former client's requests. The opinion holds the lawyer must store and handle the copies so the former client's confidential information is not disclosed to or used by anyone at the new firm who did not represent that client, must scrub all confidential information before using a document as a form, and may not use a document as a form at all where its customization means any use would reveal confidential information.
Common questions
Q: Can I take copies of my clients' documents when I move firms?
A: Per Opinion 670, yes; a departing lawyer may, at the lawyer's own expense, copy and retain documents from matters the lawyer personally handled, and neither the old firm's nor the client's consent is required so long as the lawyer stays responsive to the client's requests for copies.
Q: Can I reuse a former client's document as a form at my new firm?
A: Only after deleting all of the former client's confidential information. The opinion adds that if a document is so customized that any use, even after deletion, would reveal confidential information, then using it as a form is improper.
Q: Can others at my new firm see the copies I brought?
A: No, not unless they also personally represented the same client in the same matter or the client consents; the opinion requires storing paper and electronic copies so they are accessible only to the departed lawyer.
Background and rules framework
The opinion interprets Texas Disciplinary Rule 1.05 (confidentiality of information), including the broad definition of confidential information in Rule 1.05(a), which corresponds to ABA Model Rule 1.6. It builds on prior Texas opinions treating client-file documents as the client's property and part of the client's confidential information.
Citations and references
Rules of Professional Conduct:
- MR 1.6 (confidentiality of information)
- Texas Disciplinary Rule 1.05 (including 1.05(a))
Other opinions cited:
- Texas Professional Ethics Committee Opinion 657 (May 2016): returning a client's file
- Texas Professional Ethics Committee Opinion 627 (April 2013): closed client files
See also
- TX Ethics Op. 657: Returning a Criminal Client's File, Costs, and Format
- TX Ethics Op. 662: Responding to a Former Client's Negative Online Review
- ABA Formal Op. 471: Surrendering Papers and Property to a Former Client
Source
- Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-670/
- Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_670.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
QUESTION PRESENTED
Under the Texas Disciplinary Rules of Professional Conduct, may a lawyer copy and retain client documents when departing a law firm?
STATEMENT OF FACTS
Just before leaving one law firm for another firm, a lawyer makes electronic and paper copies of client documents regarding matters in which the lawyer personally represented the client. The lawyer takes these copies to his new firm. The lawyer's former law firm later learns of the copying and retention of its client documents by the lawyer and demands their return from the lawyer and his new firm. The client whose documents were copied is not following the lawyer to the new firm and no continuing representation of the now former client by the lawyer or the new firm is contemplated. The lawyer wants to keep copies of his former client's documents for use as "forms" in his continuing practice.
DISCUSSION
Rule 1.05 of the Texas Disciplinary Rules of Professional Conduct requires that a lawyer protect a client's "confidential information," as broadly defined in subsection (a) of the Rule. Generally speaking, documents in a client's file, whether in paper form or stored electronically, belong to the client and are part of the client's confidential information. See Professional Ethics Committee Opinions 657 (May 2016) and 627 (April 2013). A lawyer's ability to use or reveal a client's confidential information is subject to the limited exceptions set out in Rule 1.05. Upon departing a firm, a lawyer who authored or had access to documents during his personal representation of a client may, at the lawyer's expense, make and retain copies of those documents, subject, however, to important obligations under the Rules.
Subject to the exceptions in Rule 1.05, the departing lawyer is obligated to protect the client's copied documents from unauthorized disclosure and use for as long as those copied documents exist in any form. The lawyer must not share those client documents with anyone at the new firm who has not also personally represented the same client in the same matter unless expressly authorized by the client or permitted under the provisions of Rule 1.05. For example, paper copies of client documents must be stored in a secure fashion accessible by the departed lawyer only. Similarly, electronic copies must be accessible by the departed lawyer only and not stored in a manner accessible by others within the new firm, absent express client consent.
There are reasons for permitting a lawyer to copy and retain a client's documents. For example, a lawyer may wish to be able to review a former client's documents in order to be able to answer questions posed to him after the conclusion of the representation.
A prior law firm's or former client's consent is not required for a lawyer to make and retain copies of a client's documents as long as the lawyer is reasonably responsive to the former client's requests for copies of documents retained by the lawyer. Although the client's file belongs to the client, the Rules do not prohibit a lawyer from making and retaining a copy of some or all of a client's file, at a lawyer's expense, subject to a lawyer's obligations under Rule 1.05 to protect the client or former client's confidential information. See Opinions 657 (May 2016) and 627 (April 2013).
As for using a former client's documents as a form, a lawyer must delete all of the former client's confidential information before sharing such forms with anyone who is not authorized by the former client or the Rules to have access to the former client's confidential information. Furthermore, if a former client's documents were so customized that any use of them as a form, even after deleting client-specific information, would reveal the former client's confidential information, then such use would be improper.
CONCLUSION
Under the Texas Disciplinary Rules of Professional Conduct, a lawyer who leaves a law firm may, at the lawyer's expense, make and retain copies of former clients' documents generated in matters in which the lawyer personally represented the clients. The lawyer must, however, comply with his obligation under the Rules to preserve the confidentiality of such documents by preventing the former clients' confidential information from being improperly used or revealed to others.
Tex. Comm. On Professional Ethics, Op. 670 (2018)