Must a lawyer give a client a medical report from the file when the doctor or an insurer who controls the report tells the lawyer not to release it?

Plain-English summary

A lawyer represented a client seeking Social Security disability benefits. The lawyer obtained a report from the client's treating psychologist that the psychologist had prepared at the direction of the client's long-term disability insurer, which paid for it. The insurer directed the psychologist not to release the report to the client, and the psychologist refused to authorize its release; the lawyer could not tell whether that was for medical reasons or because of the insurer's instruction. The committee was asked whether the report is part of the client's file under Rule 1.16(e) and whether the carrier or psychologist can bar the lawyer from giving it to the client.

The committee first separates the lawyer's duties during the representation from those at its end. During the representation, Rule 1.4(a) requires the lawyer to keep the client reasonably informed and promptly comply with reasonable requests for information, and Rule 1.15(c) requires return of client property on request. On termination, Rule 1.16(e) controls the disposition of the file, breaking its contents into three categories. The medical report fits the second category (documents prepared by or collected for the client in the course of the representation), which the committee reads to cover material obtained from others, not just material the lawyer creates. The committee concludes the report is part of the client file under Rule 1.16(e).

On the second question, the committee relies on LEO 1723: a lawyer must remain mindful that he represents the insured, not the carrier, and may not let a non-client's instructions cause him to breach duties owed to the client. The carrier and psychologist therefore cannot direct the lawyer to withhold the report. The committee adds that if the lawyer were to determine the psychologist wants to preclude access out of concern for the report's effect on the client, Rule 1.14 (client with impairment) may be implicated, though the limited facts do not allow that analysis. The committee declined to address other legal authority, including Virginia Code Sections 8.01-413 and 32.1-127.1:03 and HIPAA, as outside its purview under Comment 11.

Currency note

This opinion was issued in 2004. Virginia's rules and the statutes and federal law governing medical-record disclosure may have changed since. Verify against current rules and law before relying on any specific requirement mentioned here.

In practice

The opinion holds that, under Rule 1.16(e) as it stood at the time, a medical report collected for the representation is part of the client's file, and the lawyer's duty to provide it runs to the client, not to the insurer or doctor who furnished it; the lawyer may not follow a non-client's instruction to withhold it. The committee flags, without deciding, that Rule 1.14 may be relevant if the lawyer concludes the report is being withheld to protect an impaired client, and expressly leaves untouched whether any statute or HIPAA independently restricts disclosure.

Common questions

Q: Is a medical report from a treating doctor part of the client's file?

A: Yes. The opinion places it in Rule 1.16(e)'s second category, documents prepared by or collected for the client, which the committee reads to include material obtained from others, not only what the lawyer creates.

Q: Can the insurer or doctor who controls the report order the lawyer not to give it to the client?

A: No. Citing LEO 1723, the committee says the lawyer represents the patient, not the carrier or doctor, and may not let a non-client's instruction cause a breach of duties owed to the client.

Q: What if the doctor is withholding the report to protect the client's mental health?

A: The committee notes Rule 1.14 may be implicated if the lawyer concludes the report is being withheld out of concern for its effect on an impaired client, but the limited facts did not allow the committee to decide whether Rule 1.14 was triggered.

Background and rules framework

The opinion interprets Rule 1.16(e) (Model Rule 1.16; disposition of the client's file on termination), alongside Rule 1.4 (Model Rule 1.4; communication during the representation), Rule 1.15(c) (Model Rule 1.15; return of client property), and Rule 1.14 (Model Rule 1.14; client with diminished capacity). Comment 11 to Rule 1.16 keeps the committee from interpreting non-disciplinary law on disclosure.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.16 / Virginia Rule 1.16(e) and Comment 11 (return of the client's file)
• Model Rule 1.4 / Virginia Rule 1.4 (communication during the representation)
• Model Rule 1.15 / Virginia Rule 1.15(c) (return of client property)
• Model Rule 1.14 / Virginia Rule 1.14 (client with impairment)

Statutes:

• Virginia Code Sections 8.01-413 and 32.1-127.1:03; Health Insurance Portability and Accountability Act of 1996 (HIPAA), Pub. L. No. 104-191, all referenced but not interpreted by the committee

Other opinions cited:

• Virginia LEO 1723 (carrier directives to an insured's attorney; the lawyer represents the insured, not the carrier)

See also

• VA LEO 1790: Pre-Sentence Report in the Client File
• ABA Formal Op. 471: Surrender of Papers and Property to a Former Client
• CA COPRAC Op. 2007-174: Electronic Versions of the Client File on Termination

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1789.pdf

Original opinion text

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

Committee Opinion
February 20, 2004

LEGAL ETHICS OPINION 1789

CLIENT FILE – WHETHER AN ATTORNEY
CAN REFUSE TO RELEASE INFORMATION
AND MEDICAL REPORTS TO CLIENT AT HIS
REQUEST.

Your request presented a hypothetical situation involving a lawyer representing a client before
the Social Security Administration. The client is seeking disability benefits under Title II of the
Social Security Act. The client has disabling mental impairments affecting both personality and
judgment. In the course of this representation, the attorney secured a copy of a report developed
by the client’s treating psychologist. The psychologist had prepared the report specifically at the
direction of the client’s long-term disability insurance carrier to determine the client’s eligibility
for those benefits. The carrier paid for the report.
The attorney’s standard practice is to have the client secure the report directly from the
evaluator so that the evaluator can discuss with the patient the implications of any findings or
opinions expressed in the medical records. However, in the present instance, the carrier directed
the psychologist not to release a copy of the report to the client. The psychologist refuses to
authorize release of the report to the client; the attorney cannot ascertain whether this is for
medical reasons or due to the carrier’s instructions. The attorney is mindful of the client’s right
to obtain the record from his own Social Security file were he to so request.
Under the facts you have presented, you have asked this Committee to opine as to the
following questions:
1. Is a medical record obtained in the course of litigation and submitted to the
tribunal in support of the client’s case part of the “client’s file” requiring
disclosure to the client pursuant to Rule 1.16(e)?
2. Can the insurance carrier and/or the psychologist prohibit the lawyer from
providing this report to the client?
When a lawyer’s client requests the contents of the file, the appropriate response for the lawyer
hinges on whether the representation has terminated. The ethical duty of response to such a
request varies depending on whether the requester is a current or a former client. During the
course of the representation, an attorney’s duty to provide information to his client is governed
by Rule 1.4(a), regarding communication. However, upon termination of the representation, the
lawyer must follow the directives of Rule 1.16(e) regarding the disposition of the client’s file.
Throughout representation of a client, Rule 1.4 requires the attorney to ensure proper
attorney/client communication, outlined as follows:

Committee Opinion
February 20, 2004

RULE 1.4

Communication

(a) A lawyer shall keep a client reasonably informed about the status of a
matter and promptly comply with reasonable requests for information.
(b) A lawyer shall explain a matter to the extent reasonably necessary to
permit the client to make informed decisions regarding the representation.
(c) A lawyer shall inform the client of facts pertinent to the matter and of
communications from another party that may significantly affect settlement or
resolution of the matter.
Generally, the rule does not direct the means by which an attorney may “keep a client
reasonably informed.” Depending on the circumstances, information may reasonably be
provided, for example, at a meeting, in a telephone call, in a letter or other document, or via email correspondence. Nevertheless, the rule requires more than just this general duty to keep the
client reasonably informed; the lawyer is also required to “promptly comply with reasonable
requests for information.” A client’s request for a copy of a particular document or documents in
the file must be considered in light of that duty. While a lawyer may not be required to provide
all file contents whenever requested, the lawyer must be sure to comply with 1.4(b) in
responding to any reasonable client request for documents during the course of the
representation. Additionally, the Committee notes that the attorney also has a duty to the client
under Rule 1.15(c) to return client property received by the attorney to the client upon request.
The lawyer’s obligations regarding file contents change upon termination of the representation.
Rule 1.16 governs the termination of an attorney/client relationship. Paragraph (e) of that rule
specifically addresses a lawyer’s obligations regarding provision of file contents to a client upon
request at the end of the representation. That paragraph states as follows:
RULE 1.16

Declining Or Terminating Representation

(e) All original, client-furnished documents and any originals of legal instruments
or official documents which are in the lawyer's possession (wills, corporate
minutes, etc.) are the property of the client and, therefore, upon termination of the
representation, those items shall be returned within a reasonable time to the client
or the client’s new counsel upon request, whether or not the client has paid the
fees and costs owed the lawyer. If the lawyer wants to keep a copy of such
original documents, the lawyer must incur the cost of duplication. Also upon
termination, the client, upon request, must also be provided within a reasonable
time copies of the following documents from the lawyer's file, whether or not the
client has paid the fees and costs owed the lawyer: lawyer/client and lawyer/thirdparty communications; the lawyer's copies of client-furnished documents (unless
the originals have been returned to the client pursuant to this paragraph);
transcripts, pleadings and discovery responses; working and final drafts of legal

Committee Opinion
February 20, 2004

instruments, official documents, investigative reports, legal memoranda, and other
attorney work product documents prepared or collected for the client in the course
of the representation; research materials; and bills previously submitted to the
client. Although the lawyer may bill and seek to collect from the client the costs
associated with making a copy of these materials, the lawyer may not use the
client's refusal to pay for such materials as a basis to refuse the client's request.
The lawyer, however, is not required under this Rule to provide the client copies
of billing records and documents intended only for internal use, such as
memoranda prepared by the lawyer discussing conflicts of interest, staffing
considerations, or difficulties arising from the lawyer-client relationship. The
lawyer has met his or her obligation under this paragraph by furnishing these
items one time at client request upon termination; provision of multiple copies is
not required. The lawyer has not met his or her obligation under this paragraph by
the mere provision of copies of documents on an item-by-item basis during the
course of the representation.
The thrust of this rule is to require an attorney to provide the file at the termination of the
representation, upon request of the client, one time. Paragraph (e) specifically addresses how to
handle the client’s file, with language breaking file contents into three categories.
The first is “all original, client-furnished documents and any originals of legal instruments or
official documents.” Those documents are deemed to be the client’s property; the attorney must
unconditionally return them to the client upon request. While the attorney may make a copy of
such documents for his own use, he may not charge that copying expense to the client.
The second category includes lawyer/client and lawyer/third-party communications, copies of
client-furnished documents (unless the original has already been returned), working and final
drafts of legal instruments, official documents, investigative reports, legal memoranda, and other
attorney work product documents prepared or collected for the client, research materials, and
copies of prior bills. For this second category, a lawyer may charge the client for the expense of
the lawyer’s making a copy of the items for his own retention. However, the attorney may not
condition the release of the documents upon the client’s prepayment of copying expenses.
A third category presented in Rule 1.16(e) includes copies of billing records and documents
intended only for internal use, such as memoranda prepared by the lawyer discussing conflicts of
interest, staffing considerations, or difficulties arising with the attorney/client relationship. A
lawyer is not required to provide those items to the client.
In applying paragraph (e)’s categories to the medical report at issue, the key category is the
second one. That category in paragraph (e) includes “documents prepared by or collected for the
client in the course of the representation.” That language clarifies that the directive of the
provision applies not only to material developed by the attorney himself but also to those
documents obtained from others for the representation. A medical report from the client’s

Committee Opinion
February 20, 2004

treating psychologist is just such a document. Thus, the Committee opines that this medical
report is part of the client file for purposes of Rule 1.16(e).
This request questions further whether either the carrier or the doctor can prohibit the attorney
from providing the client with a copy of this report. In considering that question, this Committee
references its previous opinion regarding carrier directives to insureds’ attorneys. See, LEO
1723. In that opinion, which dealt with a carrier’s directives to an insured’s attorney to work
with certain limitations on the scope of representation, the Committee noted that the attorney
must remain mindful that he represents the insured, not the carrier. Accordingly, in rejecting the
attorney’s acceptance of the restrictions, the Committee noted:
[I]t is ethically impermissible for an attorney to agree to an insurance carrier’s
restrictions on the right of the insured absent full disclosure and consent of the
client at the outset of the representation and absent a determination that the
client’s rights will not be materially impaired by the restrictions.
Similarly, the present attorney must be mindful of the fact that he represents the patient, and
not the carrier or the psychologist. This attorney should not follow the instruction of these
nonclients to breach the attorney’s ethical duties owed to his client, such as provision of file
contents pursuant to Rule 1.16(e).
The Committee notes that while question two does not make express mention of mental health
concerns as the reason for the psychologist’s directive in this matter, the facts in the hypothetical
do raise that possibility. Were the attorney to determine that the psychologist wants to preclude
client access to the report out of concern for the effect on the client of such disclosure, the
attorney may wish to consider whether Rule 1.14 is implicated in his situation.
Rule 1.14 provides guidance to an attorney with a client with impairment. In particular, the
rule allows an attorney to take protective action with regard to his client under certain
circumstances when the client cannot act in his own interest. The limited facts presented do not
allow for analysis of whether Rule 1.14 is triggered in this particular situation. However, the
Committee does note that while an attorney may never withhold a medical report from a client
merely at the request of some other party, in rare instances, an attorney may appropriately
consider whether the client is able to act in his own interest with respect to requesting the
information.
The Committee further notes that the conclusions drawn in this opinion are only those within
the purview of this Committee to interpret the Rules of Professional Conduct. Comment 11 to
Rule 1.16 states that “the requirements of paragraph (e) should not be interpreted to require
disclosure of materials where the disclosure is prohibited by law.” Interpretations of authority
other than the Rules of Professional conduct would be beyond this Committee’s purview.
Accordingly, this opinion does not address legal questions of permissibility of disclosure of
medical records under legal authority such as Virginia Code §§8.01-413 and 32.1-127.1:03 or the

Committee Opinion
February 20, 2004

Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191, 42 U.S.C.
1301 et. seq.
This opinion is advisory only, based only on the facts you presented and not binding on any
court or tribunal.