This opinion has been questioned and modified in ethics opinion R-19, effective August 4, 2000.
January 18, 1982
Upon request from a client or former client, a lawyer has an ethical duty to deliver the file to the client; included in the file should be all items that the lawyer retained in the file, such as notes, opinions and evaluations.
References: ABA iC-724.
This opinion concerns the right of a client or former client to a closed file. Additionally, the lawyer requesting the opinion asks whether the lawyer has a duty to deliver to the client "a copy of all information, all notes, side notes, notes and opinions of associates, all medical documents and evaluations and everything dealing with the case."
Where a former client requests the file and the lawyer has possession of the file, the lawyer has an ethical duty to deliver the file to the former client, or the client's newly retained counsel. The lawyer in possession of the file may require a written request and receipt for the file, signed by the former client, before surrendering possession of the file.
ABA iC-724 concerned possession of files as between newly retained counsel and former counsel; it was opined that "the client is entitled to return of the files in the subject cases, by having them returned, if he chooses, to the client's general counsel."
While Michigan has not adopted the ethical considerations of the ABA Model Code of Professional Responsibility, it is noted that EC 2-32 and EC 4-6 discuss the disposition of files with the conclusion that the client, or former client, has a clear right to the files. The same result has been reached by the ethics committees of the California, Illinois, Louisiana, New York, North Carolina, Washington and Wisconsin bars. Digest of Bar Assoc Ethics Ops (ABA, 1970) Numbers 940 and 4571; 1970 Supplement to Digest of Bar Assoc Ethics Ops (ABA, 1972) Numbers 6704 and 6728; 1975 Supplement to Digest of Bar Assoc Ethics Ops (ABA, 1977) Numbers 7685, 7784, 7877, 7921, 9200, 9306, 9475, 9602 and 10250.
The standards concerning medical records are that all items in the chart should be made available to the patient. No lesser standard should apply to lawyer records and therefore all notes, memoranda, correspondence and other items in the file should be included in the file that is delivered to the client.