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?
Apply this to your situation
This page answers the general question as of 1979. Ezel answers yours: whether it's allowed on your facts, under the current Virginia Rules of Professional Conduct, with citations.
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 Treat this page as historical context, not current guidance.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
- VA LEO 431: Departing Associate and Client Files
- VA LEO 352: Returning a File After Discharge
- VA LEO 465: Retaining Lien on Client Property for Unpaid Fees
Source
- Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
- Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/0323.pdf
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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