When a representation ends, can a West Virginia lawyer charge the client for copying the file the lawyer must return?

Plain-English summary

The Committee was asked under what circumstances, if any, an attorney can charge a client for copying a file that must be returned to the client when the attorney's employment ends. It explained that when an attorney-client relationship terminates, the attorney's duty does not stop: the attorney must cooperate with succeeding counsel, minimize the possibility of harm to the client, protect the client's interest, and return the client's property, papers, and unearned advanced fees. The Committee quoted Rule 1.16(d), which requires a lawyer on termination to take reasonably practicable steps to protect the client's interest, such as giving reasonable notice, allowing time to employ other counsel, surrendering papers and property to which the client is entitled, and refunding unearned advance fees, while permitting the lawyer to retain papers relating to the client to the extent permitted by other law.

The Committee noted the lawyer's duty to promptly return client papers is well established and that it had taken the position that papers may not be retained as security for a fee, but that there had been no West Virginia opinion on who bears the cost of copying when the attorney wants to keep a copy of the returned papers, or to give the former client a copy while retaining the originals. The Committee found it is the general obligation of lawyers to return the original documents to their clients, with obvious exceptions such as original fee statements and firm records. Despite that obligation, attorneys are entitled to keep copies of their clients' files. The Committee concluded that, absent a prior agreement that the client will be responsible for copying charges, the attorney must bear the costs of copying unless the copying is for the sole benefit of the client; and that even if such an agreement exists, if the client refuses to pay, the attorney must advance the costs and then add the charge to the client's outstanding bill.

Currency note

This opinion was issued in 1989, before the West Virginia Supreme Court of Appeals' comprehensive 2015 revision of the West Virginia Rules of Professional Conduct (effective January 1, 2015). 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 Treat this page as historical context, not current guidance.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: Must a lawyer return the original file or just a copy?

A: The opinion concluded it is the general obligation of lawyers to return the original documents to their clients, with exceptions such as original fee statements and firm records.

Q: Can the lawyer make the client pay to copy the file?

A: The opinion concluded that, absent a prior agreement that the client is responsible for copying charges, the attorney must bear the cost of copying unless the copying is for the client's sole benefit.

Q: What if there was an agreement that the client pays copying costs but the client refuses?

A: The opinion concluded the attorney must advance the costs and then add the charge to the client's outstanding bill.

Background and rules framework

The opinion interpreted West Virginia's Rule 1.16(d) (Model Rule 1.16) on a lawyer's duties when representation ends, including surrender of papers and property and refund of unearned fees, citing the Annotated Model Rules of Professional Conduct. It reaffirmed the Committee's position that client papers may not be held as security for a fee and addressed the previously unanswered question of who pays for copying.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.16 / WV Rule 1.16(d) (declining or terminating representation; surrender of papers and property; refund of unearned fees)

See also

• WV Ethics Op. 92-02: Attorney Retaining Liens
• CA Op. 1992-127: Trial Counsel Aid to Appellate Counsel
• LACBA Op. 493: Disputes Between Former Clients Over Files

Source

• Landing page: https://wvodc.org/Legal-Ethics-Opinion
• Original PDF: https://storage.googleapis.com/msgsndr/Rgd68xOkcVdteTsBkf6O/media/66a7ea7ef10bdc48c0ae449a.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

L.E.I. 89-02
COPYING CHARGES FOR FILES

Question presented: Under what circumstances, if any, can an attorney charge a client for copying a file, which must be returned to the client upon termination of the attorney's employment?

When an attorney/client relationship terminates, the attorney's duty does not stop at that point. For example, he/she must cooperate with succeeding counsel and minimize the possibility of harm to the client. Additionally, an attorney must protect the client's interest and must return the client's property paper and unearned advanced fee payment. Rule of Professional Conduct 1.16(d) provides: "Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable, to protect the client's interest, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled, and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law."

The lawyer's duty to promptly return client papers upon termination of the representation, is well established. See Annotated Model Rules of Professional Conduct, pages 185-186.

The Committee on Legal Ethics has taken the position that papers, etc., may not be retained as security for a fee. However, there has been no West Virginia opinion or decision regarding who should bear the costs of copying such papers when the attorney desires either to retain a copy of the papers returned or, in the alternative, to give the former client a copy of the papers while retaining the originals. The Committee finds that it is the general obligation of lawyers to return the original documents to their clients. There are obvious exceptions to this, such as original fee statements and firm records.

Despite the obligation to return original documents to clients, attorneys are entitled to keep copies of their clients' files. It is the Committee position that absent a prior agreement that the client will be responsible for copying charges, the attorney must bear the costs of such copying unless the copying is for the sole benefit of the client. Additionally, even if such an agreement exists, in the event the client refused to pay, the attorney must advance the costs and then add the charge to the client's outstanding bill.