When a lawyer withdraws from representing both an employer and its employees over a conflict, who is entitled to the file the lawyer created?

Plain-English summary

A lawyer was retained by a Virginia corporation to perform immigration-law work to help "legalize" some of its employees, and also provided the corporation with educational information about immigration law. The goals of the employer and the employees were originally the same, but a conflict of interest developed between them, forcing the lawyer to withdraw from representing both. The lawyer asked which party, employer or employee, was entitled to possession of the files created during the representation.

The committee pointed to DR 9-102(B)(4), which requires a lawyer to promptly deliver to the client (or another person, as requested) the funds, securities, or other properties in the lawyer's possession that such person is entitled to receive. It concluded that deciding which particular documents belonged to the employer and which to the employees was a legal question, not an ethical one, and so was beyond the committee's province. DR 9-101(B)(4) merely required the lawyer, when requested, to return property in his possession to the person legally entitled to it.

Currency note

This opinion was issued in 1988, under Virginia's former Code of Professional Responsibility (the disciplinary rules it cites), before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000. As the committee note observes, current Rule 1.16(e) governs a lawyer's duty to provide files to a former client. 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 Treat this page as historical context, not current guidance.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: When two former clients dispute who owns the file, can an ethics committee decide it?

A: Under this 1988 opinion, no. The committee concluded that which documents belong to the employer versus the employees is a legal question, not an ethical one, and outside its province.

Q: What did the ethics rule require the lawyer to do with the file?

A: Under DR 9-102(B)(4) and DR 9-101(B)(4), the lawyer had to promptly deliver, when requested, the property in his possession to the person legally entitled to receive it.

Q: Does a conflict that forces withdrawal change the duty to return the file?

A: The opinion does not treat the conflict as changing the duty; the lawyer still had to return property to whoever was legally entitled to it, with that entitlement being a legal question.

Background and rules framework

The opinion interpreted former Virginia DR 9-102(B)(4) and DR 9-101(B)(4), the Code provisions on safekeeping and returning client property. The duty to provide a former client's file is now within Virginia Rule 1.16(e), the analog of ABA Model Rule 1.16.

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 9-102(B)(4) and DR 9-101(B)(4) (delivering property to the person entitled)
• ABA Model Rule 1.16 (declining or terminating representation; returning the file)

See also

• VA LEO 1171: Copying Fees as a Condition to Release the File
• VA LEO 1366: The Whole File Belongs to the Client
• VA LEO 1176: Holding a File Until Fees Are Paid

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1157.pdf

Original opinion text

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

Committee Opinion
October 18, 1988
LEGAL ETHICS OPINION 1157

FILES-TERMINATION OF
REPRESENTATION: DELIVERING
FILES TO THE CLIENT.

You have advised that you were retained by a Virginia corporation to perform certain
tasks in the area of immigration law to help “legalize” some of their employees. You also
provided the corporation with educational information concerning immigration law.
Originally, the goals of the employer/corporation and the employees were the same, to
legalize the employees. Now, however, you state that you have been forced to withdraw
as counsel for both parties because a conflict of interest has developed between the two.
You wish to know which of these parties (i.e., employer or employee) is entitled to
possession of the files which were created during the course of your representation of
them.
Disciplinary Rule 9-102(B)(4) [DR:9-102] requires that a lawyer “promptly take or
deliver to the client or another as requested by such person the funds, securities, or other
properties in the possession of the lawyer which such person is entitled to receive.”
Which particular documents in your files belong to the employer or the employee is a
legal question and not an ethical question, and thus is beyond the province of this
Committee. Disciplinary Rule 9-101(B)(4) [DR:9-101] merely requires that a lawyer
when requested, return property in his possession to the person legally entitled to it.
Committee Opinion
October 18, 1988
Legal Ethics Committee Notes – Rule 1.16(e) governs a lawyer’s duty to provide files
to a former client.