This opinion has been questioned and modified in ethics opinion R-19, effective August 4, 2000.
November 1, 1982
Where a former client requests a legal file, the lawyer has an ethical duty to deliver the original file to the former client, or the former client's newly retained counsel. The former lawyer may retain a photostatic copy of the file, however, it would be inappropriate to charge the client or successor counsel photocopy charges, unless the client or successor counsel consent.
References: MCPR DR 4-101(C), DR 9-102(B)(4); CI-716, CI-722, CI-743.
A law partnership has been dissolved and one of the partners of the law firm has established a sole practice. The partnership represented a number of municipal clients, several of whom have requested that the representation files be turned over to the partner now in sole practice. The lawyers asks:
- Whose property are the closed files?
- Must the firm turn over the files to either the municipal client or the sole practitioner?
- Can the firm charge the municipal client or sole practitioner copy costs and keep the original files?
MCPR DR 9-102(B)(4) states:
The rule requires that a lawyer deliver to the client as requested by a client properties in the possession of the lawyer which the client is entitled to receive.
This committee has consistently opined that where a former client requests a representation file in the lawyer's possession, the lawyer has an ethical duty to deliver the file to the former client, or to the client's successor counsel. The lawyer or law firm in possession of the file may require a written request and receipt for the file, signed by the former client, before the surrendering possession of the file. CI-716, CI-722 and CI-743. The instructions and wishes of the client are the dominant consideration governing the disposition of files. Therefore, if the municipal clients have requested that the partnership files be turned over to the former partner, there is an ethical obligation to do so.
Although it is the committee's view that the original file belongs to the client, the lawyer may retain a copy of the client's file. CI-716 held that all notes, memoranda and correspondence should be included in the file. The client and/or successor counsel is entitled to the lawyer's "work product" for which the client has paid a fee, including but not limited to, all "file interview notes, research notes, and unfiled but prepared pleadings." The client is not per se entitled to all documents in the firm's legal file. For example, a lawyer's personal observations, notes or memorandum with respect to a client's character or competency traits, particularly when negative, probably should not be released to the client.
The confidentiality requirements of MCPR DR 4-101 continue after the conclusion of the representation, and a lawyer may not disclose a former client's "confidences" or "secrets" unless permitted by MCPR DR 4-101(C).
It is inappropriate to charge the client or successor counsel the cost of reproducing the file, unless they consent to the payment of a reasonable amount. As stated earlier, the original file belongs to the client. Where the client has no interest in the law firm retaining copies of the file for its own needs, there is no basis upon which the client or successor counsel can be required to pay for a copy of the file which the client has no interest in the law firm retaining.
Whether the lawyer may retain the file pending payment is a question of law beyond the jurisdiction of this committee.