When representation ends, what must a Wisconsin lawyer give the client from the file, and can the lawyer hold it for unpaid fees?

Plain-English summary

Opinion EF-16-03 (December 29, 2016, amended March 8, 2017) addresses the lawyer's duty to surrender the client's file when representation ends. The committee reaffirms that the file is the client's property even though kept in the lawyer's office, and that under SCR 20:1.16(d) the lawyer must, on request from the client or successor counsel, surrender the papers and property to which the client is entitled, unless the client has instructed that the file not go to successor counsel. The opinion withdraws Opinions E-00-03, E-84-5, E-82-7, and Memorandum Opinion 4/78 B, and answers six recurring questions.

On what the file includes, the committee declines to label its approach "entire file" or "end product" and instead lists materials the lawyer must provide (unless other law forbids): items the client supplied; filed or ready-to-file legal documents; discovery; tribunal orders and records; executed instruments such as contracts, wills, and corporate records; correspondence including retained emails and texts; legal opinions issued for the client; third-party assessments paid for by the client; relevant legal research and drafts; and anything the client was billed for. It also lists materials the lawyer may withhold: items whose release would breach a duty to another person (such as another client's document used as a model), materials that could endanger someone or be used to commit a crime or fraud, purely internal firm communications (conflict checks, staffing, advice on the lawyer's own compliance), and the lawyer's personal impressions and assessments of the client (notes mixing facts and impressions may be redacted). The committee avoids the phrase "personal attorney work product" to prevent confusion with the evidentiary doctrine.

On format, the committee concludes that if the lawyer keeps the file electronically and the client or successor counsel requests it that way, the lawyer must provide it electronically, and may have to convert electronic files to paper if the client cannot access them, but is not required to provide both formats or to convert merely for convenience; the guiding principle is protecting the client's interests, and the lawyer ordinarily bears reasonable retrieval costs. On duplicate copies, the committee reverses prior Wisconsin opinions: having sent the client copies during the representation does not relieve the lawyer of providing the complete file at termination, because the client paid for the documents and it is the lawyer's duty, not the client's, to protect the client's interests. On fees, the committee concludes the duty is unconditional: a lawyer may not withhold the file to coerce payment, Wisconsin has not recognized a "retaining lien," and asserting one has been found to violate SCR 20:3.1(a)(1); a lawyer also may not demand a liability release as a condition of return, and may not charge the client to copy a set the lawyer keeps for the lawyer's own benefit. On successor counsel, the committee concludes a request from successor counsel should ordinarily be treated as a request from the client, with no requirement of separate written client authorization, subject to any specific client instruction not to release the file.

In practice

Under this opinion, conduct matching its fact pattern is treated as follows. As the rules stood at the time of the opinion, a Wisconsin lawyer had to surrender the client's file promptly on request when representation ended, providing the listed materials in a format usable by the client (electronic if that is how it was kept). The committee concludes the lawyer may not condition return on payment of fees or on a liability release, may not charge the client to copy a set the lawyer keeps, must provide the complete file even if copies were sent during the representation, and should treat a successor counsel's request as the client's unless the client instructed otherwise.

Common questions

Q: Does a Wisconsin lawyer have to give the client the file when the case ends?

A: Yes, on request. The committee concludes the file is the client's property and SCR 20:1.16(d) requires the lawyer to surrender the papers and property to which the client is entitled, with limited exceptions.

Q: Can the lawyer keep the file until the client pays the bill?

A: No. The committee concludes the duty is unconditional, that Wisconsin has not recognized a "retaining lien," and that asserting one has been found to violate SCR 20:3.1(a)(1).

Q: Must the file be provided electronically?

A: Yes, if that is how it was kept. The committee concludes that if the lawyer keeps the file electronically and the client requests that format, the lawyer must provide it electronically, and may have to convert it to paper if the client cannot otherwise access it.

Q: Can the lawyer charge the client to copy the file?

A: No. The committee concludes that because copying for the lawyer's own records is for the lawyer's benefit, a lawyer who keeps a copy may not charge the client the duplication cost.

Q: How should the lawyer handle a request from successor counsel?

A: Treat it like the client's request. The committee concludes successor counsel acts as the client's agent, so the request should ordinarily be honored without separate written authorization, unless the client instructed that the file not be released.

Background and rules framework

The opinion interprets SCR 20:1.16(d) / Model Rule 1.16 (steps to protect a client on termination, including surrendering papers and property), and references SCR 20:1.15(d)(1) / Model Rule 1.15 (prompt delivery of client property), SCR 20:1.6 / Model Rule 1.6 (confidentiality of the file), SCR 20:3.1(a)(1) / Model Rule 3.1 (frivolous positions, applied to asserting a retaining lien), and SCR 20:4.1 / Model Rule 4.1 (truthfulness, applied to successor-counsel requests). It draws heavily on ABA Formal Opinion 471.

Citations and references

Rules of Professional Conduct:

• Wis. SCR 20:1.16(d) / Model Rule 1.16 (surrendering papers and property on termination)
• Wis. SCR 20:1.15(d)(1) / Model Rule 1.15 (prompt delivery of client property)
• Wis. SCR 20:1.6 / Model Rule 1.6 (confidentiality of the file)
• Wis. SCR 20:3.1(a)(1) / Model Rule 3.1 (frivolous positions; retaining lien)
• Wis. SCR 20:4.1 / Model Rule 4.1 (truthfulness; successor-counsel requests)

Cases:

• Disciplinary Proceedings against Kitchen, 2004 WI 83, 682 N.W.2d 780, charging clients to retrieve their file
• In re Brussow, 286 P.3d 1246 (Utah 2012), duty to provide the file even after copies were sent

Other opinions cited:

• ABA Formal Op. 471: what comprises the client file on surrender
• North Carolina Ethics Op. 2013-15: providing the file in electronic versus paper format
• Wisconsin Ethics Opinions E-00-03, E-84-5, E-82-7, and Memorandum Opinion 4/78 B (withdrawn by this opinion)

See also

• WI Ethics Op. EF-17-01: Retention and Destruction of Closed Client Files
• ABA Formal Op. 471: Surrendering Papers and Property to a Former Client
• DC Ethics Op. 250: Retaining Lien on Former Client Files for Unpaid Fees

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/Wisconsin%20Formal%20Ethics%20Opinion%20EF-16-03%20File%20Return%20-%20final.pdf