Must a Utah lawyer hand over unsigned wills or unfiled pleadings as part of the client's file when fired?

Plain-English summary

Opinion 06-02 answers whether an unexecuted trust or will, or an unfiled petition for an extraordinary writ, that a lawyer prepared for a client is part of the "client's file" that Rule 1.16(d) requires the lawyer to deliver when the representation ends. The fact pattern: a lawyer took a fixed-fee engagement to prepare a trust, a will, and a writ petition; the client never signed the retainer, then refused to pay and terminated the relationship while demanding the unsigned and unfiled documents.

The Committee explains that Utah's Rule 1.16(d) differs from the ABA Model Rule. After the Utah Supreme Court's decision in Jones Waldo Holbrook & McDonough v. Dawson, Utah deleted the lawyer's right to assert a retaining lien against the client's file, so a Utah lawyer must provide the client's file on request regardless of unpaid fees. That makes it critical to define what the "client's file" is. Comment 9 to Rule 1.16 says the file generally includes things like client-provided papers, pleadings, correspondence, discovery, and exhibits, but generally does not include the lawyer's work product, such as recorded mental impressions, research notes, internal memoranda, and unfiled pleadings.

Applying Comment 9, the Committee concludes that the unfiled writ petition is excluded as an unfiled pleading, and it interprets the Comment to likewise exclude unsigned legal instruments such as agreements, trusts, and wills, treating them as the transactional lawyer's equivalent of the litigation lawyer's unfiled pleadings. Because such drafts may be incomplete or unchecked, withholding them does not normally prejudice the client (unlike the litigation files withheld in Dawson), and the client still gets the client's own papers and the file and may take them to new counsel. The Committee adds two policy reasons: lawyers should not face liability for delivering unexecuted or unfiled drafts that may be unfinished, and the rules should not be read to help a client obtain a lawyer's work without paying by terminating after the drafts are prepared.

In practice

Under this opinion, a Utah lawyer ending a representation must turn over the client's file on request, and because Utah eliminated the retaining lien from Rule 1.16(d), the lawyer cannot hold the file hostage for unpaid fees. The opinion holds that the file does not include the lawyer's work product, and it classifies unsigned legal instruments (drafts of trusts, wills, and agreements) and unfiled pleadings as work product, so the lawyer is not required to deliver those particular drafts even if the client has not paid. Per the opinion, the client remains entitled to the client's own papers and property and the rest of the file, and may take them to new counsel. This opinion was issued in 2006 and turns on Utah's specific Rule 1.16(d) and its Comment 9; confirm the current text of Utah Rule 1.16(d) and Comment 9 before relying on the line drawn here.

Common questions

Q: Does Utah let me hold the client's file for unpaid fees?

A: No. The opinion explains that Utah amended Rule 1.16(d) to delete the lawyer's retaining lien against the client's file, so the lawyer must provide the file on request regardless of fees owed.

Q: Is an unsigned will or trust I drafted part of the client's file?

A: No, per this opinion. The Committee interprets Comment 9 to Rule 1.16 to treat unsigned legal instruments as the lawyer's work product, the transactional equivalent of an unfiled pleading, so they are not part of the client's file.

Q: What about a pleading I drafted but never filed?

A: The opinion concludes an unfiled pleading, such as the extraordinary writ in the inquiry, is excluded from the client's file under Comment 9 as work product, so Rule 1.16(d) does not require delivering it.

Q: Does the client get anything if I keep the drafts?

A: Yes. The opinion stresses the client is still entitled to the client's own papers and property and the rest of the client's file, and may deliver those to new counsel to prepare the instruments or pleadings.

Background and rules framework

The opinion interprets Utah Rule of Professional Conduct 1.16(d) (duties on termination of representation), which differs from ABA Model Rule 1.16(d) because Utah deleted the Model Rule's allowance for retaining papers under a state-law retaining lien. The Committee relies on Comment 9 to Rule 1.16, which lists what the "client's file" generally does and does not include, excluding the lawyer's work product and unfiled pleadings. The analysis is anchored in the Utah Supreme Court's decision in Jones Waldo Holbrook & McDonough v. Dawson, which prompted the amendment, and the Committee's earlier Opinion No. 91 on retaining liens.

Citations and references

Rules of Professional Conduct:

• MR 1.16 / Utah RPC 1.16(d) and Comment 9 (duties on termination; scope of the client's file)

Cases:

• Jones Waldo Holbrook & McDonough v. Dawson, 923 P.2d 1366 (Utah 1996), disapproving a retaining lien on the client's file during ongoing litigation

Other opinions cited:

• Utah EAOC Opinion No. 91 (1989): common-law attorney's retaining lien not per se improper under former Rule 1.14 (now 1.16)

See also

• ABA Formal Op. 471: Surrendering the Client File
• ABA Formal Op. 520: Conveying Information to a Former Client or Successor Counsel
• Utah Ethics Op. 14-01: Outsourcing Lien Resolution, Cost or Fee

Source

• Landing page: https://www.utahbar.org/ethics-opinions/2006-02/
• Original PDF: https://www.utahbar.org/wp-content/uploads/2022/12/2006-02.pdf

Original opinion text

Best-effort transcription from a two-column PDF, reassembled in the opinion's own section order. Minor errors may remain; the linked PDF is authoritative.

UTAH STATE BAR ETHICS ADVISORY OPINION COMMITTEE

Opinion No. 06-02

June 2, 2006

Issue: Is an unexecuted trust or will or an unfiled extraordinary writ prepared by a lawyer for a client part of the "client's file" within the meaning of Rule 1.16 which must be delivered to the client at the termination of the representation.

Opinion: An unexecuted legal instrument such as a trust or will, or an unfiled pleading, such as an extraordinary writ, is not part of the "client's file" within the meaning of Rule 1.16(d). The lawyer is not required by Rule 1.16 to deliver these documents to the client at the termination of the representation.

Facts: An attorney accepted a fixed fee engagement to prepare for a client a trust, a will and a petition for extraordinary writ. The lawyer sent a retainer agreement to the client reflecting the fixed fee engagement, but the client did not sign the retainer agreement. The lawyer prepared the trust, will and petition for extraordinary writ, but the client refused to pay the lawyer for the services, and the client terminated the attorney-client relationship. The client is now demanding that the lawyer deliver to the client as part of the "client's file" the unexecuted trust and will, and the unfiled extraordinary writ.

Analysis: Rule 1.16(d) of the Utah Rules of Professional Conduct differs from the ABA Model Rule 1.16(d) in that the Model Rule permits the lawyer to retain the "client's file" following the termination of the attorney-client relationship if state law affords the lawyer a retaining lien against the client's file for purposes of securing the lawyer's fee. Model Rule 1.16(d) states: "The lawyer may retain papers relating to the client to the extent permitted by other laws."

Utah Rule 1.16(d) was amended to delete from Rule 1.16(d) the right of the lawyer to assert a retaining lien against the "client's file". Utah Rule 1.16(d) states: "The lawyer must provide, upon request, the client's file to the client. The lawyer may reproduce and retain copies of the client file at the lawyer's expense."

Comment 9 to Rule 1.16(d) explains the amendment to Utah Rule 1.16(d) as follows: "The Utah Rule differs from the ABA Model Rule in requiring that papers and property considered to be part of the client's file be returned to the client notwithstanding any other laws or fees or expenses owing to the lawyer."

The amendment of Utah Rule 1.16(d) followed the Utah Supreme Court's decision in Jones Waldo Holbrook & McDonough v. Dawson, 923 P.2d 1366 (Utah 1996). In Dawson the plaintiff law firm sued its client for payment of its attorney's fees. In a "postscript" to its decision, the Utah Supreme Court stated that it disapproved of the plaintiff law firm's assertion of a retaining lien in the defendant's file during on-going litigation following the termination of the attorney-client relationship. Although the Court affirmed in part a judgment in favor of the plaintiff law firm for unpaid fees and costs, the Court stated that the plaintiff law firm had failed to "take steps to the extent reasonably practicible to protect the client's interest, such as surrendering papers and property to which the client is entitled (quoting from Rule 1.16(d))" when the law firm refused to surrender to defendant her file during the course of on-going litigation.

It is noteworthy that the plaintiff law firm's conduct in Dawson was consistent with Ethics Advisory Opinion Committee Opinion No. 91 (May 17, 1989). This Opinion concluded that the use of the common law attorney's retaining lien recognized by the Utah Supreme Court in several cases was not per se improper under Rule 1.14 (currently, Rule 1.16). Relying on decisions of the Utah Supreme Court, Opinion No. 91 permitted use of a retaining lien even in the course of on-going litigation if (i) the lawyer was wrongfully discharged or withdrew for good cause; and (ii) during the representation, the lawyer represented the client with reasonable diligence.

In adopting Opinion No. 91, the Board of Bar Commissioners recommended a Petition for Amendment of Rule 1.14 (currently Rule 1.16) be filed with the Utah Supreme Court "to clarify the attorney's duty to the client in returned documents and papers upon termination of representation".

With Utah's amended Rule 1.16(d), it is clear that if the unexecuted trust and will or the unfiled petition for extraordinary writ are part of the "client's file", then the lawyer is required by Rule 1.16(d) to turn over to the client the trust, will and petition for extraordinary writ upon the termination of the representation, regardless of whether the lawyer has been wrongfully discharged and regardless of whether the lawyer has been paid for these services. It is therefore critical to determine what is the "client's file" within the meaning of Rule 1.16(d).

Comment 9 of Rule 1.16 states: "It is impossible to set forth one all encompassing definition of what constitutes the client's file. However, the client file generally would include the following: all papers and property the client provides to the lawyer; litigation material such as pleadings, motions, discovery, and legal memoranda; all correspondence; depositions; expert opinions; business records; exhibits or potential evidence; and witness statements. The client file generally would not include the following: the lawyer's work product such as recorded mental impressions; research notes; legal theories; internal memoranda; and unfiled pleadings."

Of significance to the issue before the Committee is the statement in Comment 9 to Rule 1.16 that the client file would not include the attorney's work product and would not include unfiled pleadings. This would exclude the unfiled petition for extraordinary writ from the "client's file" within the meaning of Rule 1.16(d). We interpret Comment 9 to also exclude from the "client's file" unsigned legal instruments such as agreements, trusts and wills. Unsigned legal instruments such as agreements, trusts and wills are the transactional lawyer's equivalent of the litigation lawyer's unfiled pleadings. This interpretation is not at odds with the Rule 1.16(d) requirement that upon the termination of representation the lawyer takes steps "to the extent reasonably practicible to protect the client's interest". Unlike the pleadings and correspondence files withheld from the client in Dawson during on-going litigation, depriving the client of unexecuted legal instruments (such as agreements, trusts and wills) will not normally prejudice the client's interests. The same is true of withholding from the client unfiled legal pleadings. The client is entitled to the client's own papers and property and the "client's file", and the client may deliver these to new counsel for the purpose of preparing the legal instruments and the legal pleadings in accordance with the instructions of the client.

Our interpretation of Comment 9 also is consistent with public policy on two fronts: (i) lawyers should not be exposed to liabilities arising from a requirement that the lawyer deliver to the client upon termination of the representation legal instruments that are neither executed nor filed as such instruments may be incomplete drafts or unchecked final documents not appropriate for execution or filing by the client or the client's new counsel; and (ii) the Utah Rules of Professional Conduct should not be interpreted in a manner to encourage and facilitate unscrupulous clients in defrauding lawyers by requesting the preparation of legal instruments, then terminating the attorney-client relationship after the legal instruments are prepared, for the purpose of obtaining the lawyer's services without payment.

Footnotes:

1. Jones Waldo Holbrook & McDonough v. Dawson, 923 P.2d 1366, 1376 (Utah 1996).

2. The punctuation of Comment 9 quoted above is interpreted by the Committee to exclude from the client file unfiled pleadings, whether or not they constitute lawyer's "work product". The Committee interprets the Comment to include as lawyer's "work product" documents containing the lawyer's recorded mental impressions. Unexecuted legal instruments and unfiled legal pleadings are often incomplete or non-final drafts. As such, these documents contain the lawyer's mental impressions (not the lawyer's finalized legal services), and constitute the lawyer's "work product".