When no fees are owed, is a former client entitled to the entire file, including the lawyer's notes, internal memoranda, and multiple drafts?

Plain-English summary

Former clients asked a firm for the entire contents of all files relating to several years of legal services, including notes, multiple drafts, and other documents leading to final documents or advice. The firm had sent the clients copies of all relevant documents during the representation, recognized the clients' right to documents they would have reason to need, and offered to copy materials at the firm's cost; the former clients and their new counsel declined the firm's invitation to review the materials. The firm asked whether the "work product" the former client is entitled to includes multiple drafts, attorney's notes, and internal memoranda. The committee assumed no fees were owed.

The controlling rule was DR 2-108(D), which lets a lawyer retain papers relating to the client to the extent permitted by applicable law but requires, on termination, delivery of all papers and property to which the client is entitled, the operative concern being that the former lawyer not prejudice the former client. The committee explained (per LE Op. 1171) that the "applicable law" DR 2-108(D) refers to is the law of an attorney's lien for fees owed; since no fees were owed, no possessory lien supported retaining anything.

The committee held that any technical legal definition of "work product" (as in the rules of evidence) is inapposite to delivery of a client's file; the term's plain meaning governs and covers all materials prepared or collected by the attorney in relation to the legal services. Where no fees are outstanding, "work product" includes attorney's notes, internal memoranda, multiple drafts, and other documents leading to final documents or advice. The client is therefore entitled to the entire file, the lawyer may not refuse to turn over any portion, the entire file is "property to which the client is entitled" (so no one but the client decides what the client may need), and that ownership holds regardless of any earlier provision of copies.

Currency note

This opinion was issued in 1990, under Virginia's former Code of Professional Responsibility (the disciplinary rule 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: Does the file the client is entitled to include the lawyer's notes and drafts?

A: Under this 1990 opinion, yes, where no fees are owed. The committee held that "work product" for file-delivery purposes carries its plain meaning and includes the attorney's notes, internal memoranda, multiple drafts, and other documents leading to final documents or advice.

Q: Can the lawyer keep part of the file because copies were already sent?

A: No. The committee held the client is entitled to the entire file and the lawyer may not refuse to turn over any portion, and that ownership is irrespective of any earlier provision of copies.

Q: Who decides what the client needs from the file?

A: The client. The committee said the entire file is property to which the client is entitled, eliminating any need for anyone other than the client to determine what the client may need.

Background and rules framework

The opinion interpreted former Virginia DR 2-108(D) (delivery of papers and property on termination, subject to a lawyer's lien under applicable law). A lawyer's duty to return the file to a former client is now Virginia Rule 1.16(e), as the committee note states.

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 2-108(D) (Code of Professional Responsibility)
• ABA Model Rule 1.16 (declining or terminating representation; returning the file)

Cases:

• Scroggins v. Powell, Goldstein, Frazier and Murphy, 15 B.R. 232 (Bankr. N.D. Ga. 1981), rev'd on other grounds, 25 B.R. 729 (N.D. Ga. 1982).
• Vargas v. United States, 727 F.2d 941 (10th Cir.), cert. denied, 469 U.S. 819 (1984).

Other opinions cited:

• Virginia LE Op. 1171: "applicable law" under DR 2-108(D) is the law of an attorney's lien for fees.

See also

• VA LEO 1418: Court-Appointed Counsel's File Duty
• VA LEO 1485: Conditioning File Return on a Receipt
• VA LEO 1519: Unsigned Will of a Deceased Client
• VA LEO 1811: Former Client File Confidentiality

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1366.pdf

Original opinion text

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

Committee Opinion
July 24, 1990
LEGAL ETHICS OPINION 1366

FILES – DUTY TO CLIENT: CONTENTS
OF FILE TO WHICH THE CLIENT IS
ENTITLED.

You have indicated that former clients have requested the entire contents of all files
relating to legal services performed for them over a period of several years, which files
include notes, multiple drafts and other documents which led to final documents or
resulted in advice given as to a particular matter. You have also noted that the former
clients in question were sent copies of all relevant documents prepared for them
throughout the course of the firm's representation. You advise that your firm recognizes
that any client has a right to receive all documents that it would have reason to need,
including "work product" created for the client, and that you are willing to copy such
documents at your (firm's) cost. Finally, you indicate that your former clients (and their
new counsel) have declined your invitation to review all material of any kind that was
prepared in representing them and, if that review uncovered any needed documents, those
documents would be given to the former clients.
You have asked that the Committee opine as to whether, under the circumstances you
describe, the "work product" to which the former client is entitled includes multiple drafts
of documents and attorney's notes and internal memoranda.
For purposes of this opinion, the Committee assumes that no fees are owing to the firm
as a result of its representation of the former clients.
The appropriate and controlling Disciplinary Rule relevant to your inquiry is DR:2-108(D) which, while permitting the lawyer to "retain papers relating to the client to the
extent permitted by applicable law," requires that, upon termination of representation, the
lawyer deliver to the client all papers and property to which the client is entitled. The
operative concept involved in the pertinent Disciplinary Rule is meant to ensure that the
former lawyer does not prejudice his former client in any way.
The Committee has earlier opined that the "applicable law" to which DR:2-108(D)
refers is that which relates to an attorney's lien for legal fees owed by the client. See LE
Op. 1171. Thus, under the assumption that your former client does not owe any fees, the
Committee further assumes that no statutory or common-law possessory lien arises upon
which you or your firm may base any retention of any materials in the client's file.
The Committee is of the view that any legal definition of "work product," as applied in
the Rules of Evidence or elsewhere in a legal context is inapposite to the question of
delivery of a client's file since a file may contain additional materials which were not
prepared in anticipation of litigation or for trial. Rather, the Committee opines that the
term's plain meaning is applicable and refers to all materials prepared or collected by the
attorney, or at the attorney's direction, in relation to any legal services for which the client
engaged the attorney or the law firm over the entire period of the provision of such
services. Thus, the Committee is of the opinion that, with relation to the ownership of a

Committee Opinion
July 24, 1990
client's file, where no fees are outstanding, "work product" includes, as you have
enumerated, attorney's notes, internal memoranda and multiple drafts and other
documents which lead to final documents or result in advice given as to a particular
matter.
Thus, the Committee is of the further opinion that the client is entitled to the entire
contents of his file and the attorney is not entitled to refuse to turn over that file or any
portion thereof. The Committee reiterates its view that the entire file is "property to
which the client is entitled," thereby eliminating any necessity for a determination by
anyone other than the client as to what the client may need. Futhermore, such ownership
of the file is irrespective of any earlier provision of copies to the client. LE Op. 1171;
Scroggins v. Powell, Goldstein, Frazier and Murphy, 15 B.R. 232, 241 (Bankr. N.D. Ga.
1981), rev'd on other grounds, 25 B.R. 729 (N.D. Ga. 1982). See also Vargas v. United
States, 727 F.2d 941, 944 (10th Cir. 1984), cert. denied, 469 U.S. 819 (1984).
Committee Opinion
July 24, 1990
Legal Ethics Committee Notes. – Rule 1.16(e) governs a lawyer’s duty to provide
files to a former client.