This opinion has been questioned and modified in ethics opinion R-19, effective August 4, 2000.
May 12, 1983
When a client demands that a lawyer turn over the client's file (open or closed), the lawyer is ethically obligated to surrender the original file to the client. The lawyer may retain a copy of the file even under circumstances where the client insists that the lawyer not do so.
The lawyer may not charge the client reasonable copy costs without the client's consent.
The question of the lawyer's right to assert a lien against the file for unpaid fees is a question of law. Assuming the law permits a lawyer to assert a lien for fees due, care should be taken to assure that imposition of the lien will not prejudice important rights or interests of the client or other parties.
References: MCPR DR 9-102(B)(4); CI-716, CI-722, CI-743, CI-845; Kysor Industrial Corp v. DM Liquidating Co, 11 Mich App 438 (1968); Daul v. Sill Mortgages Inc, 37 Mich App 708 (1972); Ambrose v. Detroit Edison Co, 64 Mich App 484 (1975).
When a client demands a turnover of the clients file, may the lawyer charge the client reproduction costs and retain the original file?
When a client demands that the client's lawyer turn over a file, may the lawyer withhold the delivery pending payment of fees for legal services?
MCPR DR 9-102(B)(4) states:
A lawyer must deliver to the client properties in the possession of the lawyer which the client is entitled to receive. The Committee has consistently held that client files are the property of the client. When a client requests a file in the lawyer's possession, the lawyer has an ethical duty to deliver the original file to the client, or the client's newly retained counsel. It would be appropriate for the lawyer or law firm in possession of the file to require a written request and receipt for the file, signed by the client, before surrendering possession. The instructions and wishes of the client are of paramount importance. CI-716, CI-722, CI-743, CI-845.
While the original file belongs to the client, the lawyer may retain a copy of the client's file. In fact, the information may be necessary in the event of a later dispute between the lawyer and the client. CI-716 held that all notes, memoranda and correspondence should be included in the file.
The client or substituted counsel is entitled to the lawyer's "work product" for which the client is obligated to pay a fee, including, but not limited to, all "file interview notes, research notes, and unfiled but prepared pleadings" with the exception of the lawyer's memoranda or notes with respect to a client's character or competency traits, particularly when negative.
On the subject of charging the client reasonable costs for reproducing the file, it is inappropriate unless the client, or substituted counsel, agrees to the payment of a charge. The original file belongs to the client. When the client has no interest in the lawyer retaining copies of the file, there is no basis upon which the client, or the client's newly retained counsel, can be required to pay for a copy of the file which the client has no interest in the first lawyer retaining. If, in either case, the lawyer retains a copy of the client's file, the lawyer is reminded of the duty to maintain client confidences and secrets following termination of the lawyer/client relationship.
In most jurisdictions, a lawyer is given a lien upon papers properly in the lawyer's possession as security for payment of the lawyer's fees. Any controversy concerning this question is a matter of law and therefore outside the e Committee's jurisdiction. Michigan law does recognize the right of a lawyer to retain possession of documents, money, or other property of the lawyer's client, coming into the lawyer's hands during the course of the professional employment, until a sum due for professional services is paid. Kysor Industrial Corp v. DM Liquidating Co, 11 Mich App 438 (1968); Daul v. Sill Mortgages Inc, 37 Mich App 708 (1972); Ambrose v. Detroit Edison Co, 64 Mich App 484 (1975).
Assuming that the lawyer or firm has a legal right to assert a lawyer' lien, care should be taken to assure that imposition of the lien will not adversely affect interests of the client. ABA Op 1461 suggests several factors which the lawyer should consider in making this evaluation.
"The lawyer should take into account . . . whether imposition of the retaining lien would prejudice important rights or interests of the client or other parties, whether failure to impose the lien would result in fraud or gross imposition by the client, and whether there are less stringent means by which the matter can be resolved, or by which the amount owing can be secured."
Sufficient information was not provided to assist the Committee in evaluating the potential for prejudice to important rights or interests of the client or others who would be substantially and adversely affected by assertion of a lien.