Your representation is over. Whether it ended through completion of the underlying matter or through your termination by the client, what portions of the file must you surrender to your client (or former client) upon request?
Rule 1.16(d) provides that upon termination of a representation, a lawyer “shall take steps to the extent reasonably practicable to protect a client’s interests” including “surrendering papers and property to which the client is entitled.” Furthermore, “upon written request by the client, the lawyer shall promptly release to the client or the client’s new lawyer the entire file relating to the matter.” Id.1 Although Rule 1.16 mandates the surrender of “papers and property to which the client is entitled,” and requires the lawyer to “promptly release” the “entire file,” it does not define what materials are encompassed by the terms “file” and “papers and property.”
In a recent formal opinion, the ABA Standing Committee on Lawyers’ Professional Responsibility clarified what files, papers, and property must be surrendered to the lawyer’s client. See ABA Formal Op. 471 at 3 (Jul. 1, 2015).2 Most jurisdictions, and the Restatement of Law (Third) Governing Lawyers, require a lawyer to surrender the “entire file” of the client—namely, all documents “possessed by the lawyer relating to the representation, unless substantial grounds exist to refuse.” See id. at 3; Restatement of the Law (Third) the Law Governing Laywers § 46 (2000). The entire-file approach “assumes that the client has an expansive general right to materials related to the representation and retains that right when the representation ends.” See ABA Formal Op. 471 at 3.
Notwithstanding this broad principle, a lawyer need not produce every scrap of paper and every bit of electronic information in the lawyer’s possession relating to a client’s matter. Among other materials, a lawyer typically need not surrendering the following:
- materials that would violate a duty of nondisclosure to another person;
- materials containing a lawyer’s assessment of the client;
- materials containing information which if released could endanger the health, safety, or welfare of the client or others; and,
- documents reflecting only internal firm communications and assignments.
See Formal Op. 471 at 3. “Internal” firm documents prepared for administrative purposes could include documents relating to matters such as:
- conflicts checks and potential conflicts of interest;
- the client’s creditworthiness;
- firm personnel or staffing matters; and,
- ethics consultations within the firm or with outside experts.
Id. at 4-6. Such documents are not subject to surrender because they are “generated for internal use primarily for the lawyer’s own purpose in working on the [client’s] matters.” Id. Note, however, that surrendering these types of documents may be necessitated by compelling circumstances, such as to avoid causing harm to the client in on-going litigation. Id. at 6.
- The rule also notes that the “lawyer may retain a copy of the file but shall not condition release over issues relating to the expense of copying the file or for any other reason. The responsibility for the cost of copying shall be determined in an appropriate proceeding.” ↵
- The committee noted that “this opinion clarifies and updates a lawyer’s ethical duty to provide a former client with papers and property pursuant to Model Rules of Professional Conduct 1.15 and 1.16,and addresses practical considerations attendant to those obligations.” ↵