Ezel / Ethics Opinions / VSB

When a firm's associate leaves to start a practice and keeps a former firm client, may the firm withhold that client's files to collect an unpaid fee?

Short answer The committee concluded it is improper for the firm to withhold the client's files in an attempt to collect a past fee. Decided under Virginia's former Code.
Bar
VSB
Issued
May 15, 1979
Source
View Original PDF

Apply this to your situation

This page answers the general question as of 1979. Ask about yours and see what the current Virginia Rules of Professional Conduct say for your facts, with citations.

How much weight this carries: A legal ethics opinion that the Supreme Court of Virginia approves or modifies becomes a decision of the Court (Rules of the Supreme Court of Virginia, Part 6, § IV, ¶ 10). Other opinions express the Standing Committee's judgment and do not bind any court or agency. Source.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

The committee addressed a situation where a firm's associate resigned to form his own practice and continued to represent a former firm client. It concluded it is improper for the firm to withhold the client's files in an attempt to collect a past fee, citing DR 2-108(A)(3) and (D).

Currency note

This opinion was issued in 1979, under Virginia's former Code of Professional Responsibility, before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000. The committee note states that Rule 1.16(e) now 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 Treat this page as historical context, not current guidance.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: Could the firm hold the client's files until its fee was paid?

A: Under this 1979 opinion, no. The committee found it improper to withhold the client's files in an attempt to collect a past fee.

Q: Did the associate's departure change the answer?

A: The opinion arose precisely because the associate left and kept the client. The firm still could not hold the departing client's files hostage to the unpaid fee.

Background and rules framework

The opinion applied the former Code's DR 2-108(A)(3) and (D) to a firm's attempt to retain a former client's files over an unpaid fee. The committee note maps the question onto current Virginia Rule 1.16(e), corresponding to ABA Model Rule 1.16 on declining or terminating representation and the return of client materials.

Citations and references

Rules of Professional Conduct:

  • DR 2-108(A)(3) and (D) (former Code)
  • Virginia Rule 1.16(e) (duty to provide files to a former client) (cited in the committee note)
  • ABA Model Rule 1.16 (declining or terminating representation)

See also

Source

Original opinion text

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

LEGAL ETHICS OPINION 323

RETENTION OF FILES.

Where a firm's associate resigns his position to form his own practice and continues to represent a former firm client, it is improper for the firm to withhold the client's files in an attempt to collect a past fee. [See II: DR:2-108(A)(3) and (D).]

Committee Opinion
May 15, 1979

Legal Ethics Committee Notes. – Rule 1.16(e) governs a lawyer’s duty to provide files to a former client.

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