April 9, 1982
A lawyer who has withdrawn from the representation of a client must make photocopies which that lawyer retained of original client property available for inspection to the former client or those lawyers specifically designated by that client, notwithstanding that another lawyer has undertaken the representation of such client in the matter and may have an attorney's lien on the original client property.
References: DR 2-110(A)(2), DR 9-102(B)(4), DR 4-101(C) (1), DR 5-103(A).
A lawyer was retained to represent a client in a circuit court action. Subsequently, the lawyer withdrew from that representation and a second lawyer was substituted as counsel in the litigation. Upon withdrawal, the original file was forwarded to the second lawyer, the first lawyer retaining photocopies for records. Thereafter, the first lawyer received a communication from a third lawyer who indicated that he/she wished to review the file in the matter. It was indicated that he/she had been contacted by the first lawyer's former client for purposes of taking over the case from the second lawyer, but wished to evaluate the file before deciding whether or not to accept the matter. The first lawyer declined to release the file for fear of infringing on the second lawyer's economic rights (lien or otherwise with the former client).
The matter is most appropriately resolved between the second and third lawyer and the first lawyer's former client. Barring that resolution, there are several ethical duties that exist as between the first lawyer and the former client.
Although the inquirer did not specifically refer to several facts which are germaine to the issues, it is assumed to be as follows for purposes of this opinion: It is assumed that you have complied with DR 2-110(B) or C when you withdrew from representation and, accordingly, you have no continuing responsibility with respect to your client's suit and are not a co-counsel with the substituted lawyer. It is further assumed that you do not claim any lien for unpaid services with respect to the file forwarded. Last, it is assumed that the file that you forwarded to the second lawyer contained "confidences" or "secrets" of that client, as those terms are defined by DR 4-101, and not merely copies of pleadings already filed with the court which are a matter of public record.
The inquiry suggests three issues pertaining to professional ethics:
- Are the photocopies of client papers and documents retained by an attorney for his or her file "client property" which must be made available to the client subsequent to delivery of the original papers and documents?
- Under what circumstances may you turn over confidences and secrets to new counsel for the purpose of the latter's review in evaluating acceptance of the file by the latter without specific authorization from the client?
- Presuming for the moment that the photocopies continue to be "client property" and a client's consent is forthcoming to deliver that property to subsequent counsel, does the economic claim of an attorney of record to whom an original file has been delivered displace your obligation to deliver client property to a new attorney?
The short answers to these issues must be decided with deference to the client's rights: affirmative as to issue one and negative as to issues two and three.
Photocopies of Papers and Documents. Certain duties of a lawyer to his or her client continue after the termination of the attorney-client relationship. See CI-125. Maintaining confidences and delivering client property are two such continuing duties. It is common sense that photocopies of original documents and papers belonging to a client and "final" (as opposed to "work product") studies briefs and data developed for the client continue to retain a character of client property to the extent that they should be made available to the client for inspection notwithstanding the originals may have previously been delivered. In this regard, this committee does not consider the initial work product of a lawyer which is not intended for the client to fall within the definition of client property; see ABA Informal Opinion 1376 for some considerations as to what may be attorney property versus client property.) To decide otherwise would place the innocent client who has lost documents or negligently misplaced them at the "mercy" of the lawyer sworn to protect the client's interest. DR 5-103 indirectly suggests this result in requiring that the lawyer not acquire a "proprietary interest in the cause of action or subject matter of litigation . . . ."
CI-628 states that "an attorney may keep a file of copies of client documents, papers and studies." This does not, however, alter the fact that the information they contain is client property.
Under DR 2-110(A)(2) and DR 9-102(B)(4) copies of client property may be made available for client inspection notwithstanding prior delivery of originals to the client.
There is no reason why a photocopying fee, reimbursing for the cost of copying the file material, cannot be charged to the client.
Duty Not to Disclose without Consent. As indicated, disclosure of client's secrets and confidences is one such area where the attorney-client relationship continues beyond representation in a particular matter. Disciplinary Rule 4-101(C) provides that a lawyer may reveal the confidences and secrets of a client only in four instances. The inquirer's circumstances suggest that only one of the four is applicable:
"(1) Confidences or secrets with the consent of the client or clients affected, but only after a full disclosure to them."
In CI-113, it was recognized that the client's best interests are served when the client may consult with new counsel with respect to a matter for which counsel has already been retained. Under the facts stated, the status of the third lawyer is not clear. As described in CI-341, that third lawyer's consultation with your former client may be sufficient to establish a kind of an attorney-client relationship even though the lawyer doesn't accept the case, but the lawyer may not handle the case until the prior lawyer is formally discharged. CI-113. It is inappropriate for you to surmise the circumstances around the relationship between the third lawyer and your former client and that before disclosing confidences and secrets you obtain the client's specific written consent pursuant to DR 4-101(C).
CI-568 is indicative of the care that a lawyer must take in disclosing confidences of a former client; notwithstanding that some evidence of consent is present. In the facts surrounding CI-568, a handwritten signature was questioned when the spouse of the client supplied the document containing the signature and the lawyer questioned the mental capacity of both and knew of former antagonism between them. While that opinion did not involve a request from another member of the bar, in this instance, you will not be able to independently ascertain the exact nature of the relationship with the third lawyer and your former client. It is appropriate for you or the third lawyer to procure the client's written consent for the disclosure of the contents of your file.
On an Ethical Basis, Intervening Attorney's Lien Does Not Bar Duty to Turn Over Client Property. The retaining or charging lawyer's lien granted for services arises not as a result of the ethical canons, but under the laws of the state of Michigan. DR 50103(A) recognizes that the lawyer's lien is one of only two legally permissible exceptions to the rule that the lawyer may not acquire a proprietary interest in a cause of action or in the subject matter of litigation. However, although a lawyer's lien may be permissible, legally, in certain situations, resort to it may be unethical. See CI-623. Furthermore, Michigan courts have indicated that the retaining lien exists only with respect to client property in the lawyer's possession. See Kysor Industrial Corp v DM Liquidating Co, 11 Mich App 438, 161 NW2d, 452 (1968)). In this situation, you have client property not subject to the second lawyer's lien (unless you are a co-counsel or have agreed with the client that you are holding the property as trustee, etc.). If you are claiming the lien, the general statement of American Bar Association Informal Opinions 241 and 243 expresses the general maxim here applicable:
"A lawyer is under no duty to protect the fee owing to another lawyer, even if the lawyer supercedes the other lawyer."
Most of the ethical situations involving protecting our colleagues' fees involve whether or not a "superceding" lawyer must protect the predecessor's fees. See American Bar Association Informal Opinion 1142 and Michigan opinion C-204 which state that beyond the termination of prior counsel and the advice of the superceding lawyer to the client to pay what would appear to be a reasonable fee to the lawyer's predecessor, there is no further duty owed by the superceding lawyer to the former attorney.)
You are not the "superceding lawyer" in this situation. But you could be in the practical circumstance of assisting the lawyer of record in the enforcement of the lien by failing to deliver client property not in the lawyer'' of record'' possession. For you to deny the inspection of client property when you do not claim a lien and are charged with delivering same, would be to protect the second lawyer's fee at the expense of the client's rights to the client's property. The right of the client to personal property and to adequate representation is the essence of C-204. Otherwise, the very narrow exceptions (acquiring a legal lien or contracting for a reasonable contingency fee) to DR 5-103's prohibition against acquiring proprietary interest in the subject matter of litigation would be unjustifiably broadened.