Your former client wants a copy of their file, but they haven’t paid you your fee. Do you have to give it to them? You’ve already given your client a copy of their file, but now they want it again. Do you have to give it to them one more time? Can you charge for your time doing it? Can you charge for duplication costs? Questions from lawyers about surrendering the client file have been around since lawyers have created client files, whether they be in paper or electronic format. For those of us who staff the WSBA Ethics Line, thorny questions like the above keep coming in. We’re excited to have a new resource, Advisory Opinion 202401, addressing what documents a lawyer must surrender upon termination of representation.
For years, we’ve been referring lawyers to Advisory Opinion 181 Asserting Possessory Lien Rights and Responding to Former Client’s Request for Files. This well-respected opinion, issued in 1987, and amended in 2009, has given helpful information but doesn’t cover many updated questions lawyers have. Opinion 202401 supplements Advisory Opinion 181 by addressing several categories of documents commonly found in a client file For instance, unless the representation agreement states otherwise, the client is entitled to one copy of the file, but the lawyer may charge a reasonable fee for repeated requests.
The baseline starts with Rule 1.16(d) which requires lawyers at the conclusion of representation to take reasonable steps to protect a client’s interests, including surrendering papers “to which the client is entitled.” This new opinion walks lawyers through documents to which the client is typically entitled and addresses some of the murky issues, like whether draft documents, copies of research material, or lawyer’s notes should be surrendered to the client.
The opinion then touches on documents to which the client is normally not entitled and covers tricky issues that may arise in file transfers like what charges are reasonable, what format the file needs to be in, and how to handle surrendering a file to former joint clients.
Bottom line, the file is considered to be the client’s property, and the lawyer should give any documents which may be helpful to the client. In the best scenario, the representation agreement will cover surrendering the file and the lawyer’s document retention policy.
Sandra Schilling. Sandra is a professional responsibility counsel with the WSBA Advancement department. She supports the WSBA Ethics Line. Legal professionals with concerns about legal ethics can call the Ethics Line at 206-727-8284 and receive help analyzing ethical issues. For other issues, Sandra can be reached at sandras@wsba.org or 206-239-2118.
