August 4, 2000
Where the lawyer has provided during the course of representation copies of or access to materials prepared for the client or to which the client is entitled, and the client later desires a "copy of the file," the lawyer may properly charge reasonable costs for search and reproduction of information to which the client is legally entitled that is contained in the lawyer's files.
References: MRPC 1.15, 1.16(d); R-5, R-12; RI-63, RI-203, RI-245; CI-495, CI-716, CI-722, CI-743, CI-758, CI-766, CI-845, CI-926; McGarry v. J A Mercier Co, 272 Mich 501,503, 262 NW 296, 297 (1935).
Prior ethics opinions CI-845 and CI-926 are overruled and opinions RI-63, RI-203, RI-245, CI-495, CI-716, CI-722, CI-743, CI-758 and CI-766 are modified as stated in this opinion.
The lawyer represented the client in various transactions over eleven years. The lawyer states that the client was provided with "everything" in the client's files during the representation. Now the client has retained new counsel and wants a "copy of each of the files" for the past eleven years. The lawyer estimates that "ten of thousands" of pages are involved. The lawyer requests an ethics opinion regarding whether the lawyer may properly charge the client for the copies of the file.
The Committee has discussed this general issue in both formal and informal opinions, not always in a consistent fashion, and has in some informal opinions confused a client's right of access with ownership of the files. The ownership of the physical materials composing the files should be distinguished from access to the information contained therein. The duty of the lawyer to bear the cost of copying the files arises from the assumption that the client owns the file, i.e., that the file is the property of the client. This determination is not a matter of ethics; it is a matter of law. No Michigan case law supports the assumption that the files are the clients. Further, no formal ethics opinion supports such an assumption, although some informal opinions have erroneously assumed such is the case. To the extent that they and other opinions of the Committee are based on such erroneous proposition, those informal opinions should be ignored.
With respect to who pays for what, only limited guidance is provided by the Michigan Rules of Professional Conduct. MRPC 1.15 relates to safekeeping of a client's property. It provides that:
"(a) A lawyer shall hold property of clients . . . that is in a lawyer's possession in connection with a representation separate from the lawyer's own property . . . . Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation.
"(b) Upon receiving funds or other property in which a client . . . has an interest, a lawyer shall promptly notify the client . . . [A] lawyer shall promptly deliver to the client . . . any funds or other property that the client . . . is entitled to receive . . . ."
MRPC 1.16(d) states in part:
"Upon termination of representation, a lawyer should take reasonable steps to protect a client's interest, such as surrendering papers to which the client is entitled . . . . The lawyer may retain papers related to the client to the extent permitted by law."
Thus, it is the lawyer's ethical duty to deliver to the client the property that the client is entitled to receive (MRPC 1.15(B)), but the determination of what papers the client is entitled to receive and what information is the property of the client are questions of law beyond the jurisdiction of the Committee.
In 1989, the State Bar Board of Commissioners issued R-5, a formal ethics opinion dealing with record retention. In this opinion, the Committee and the Board of Commissioners cautioned lawyers not to unilaterally destroy or discard items that clearly or probably belong to the client. The opinion provided examples with respect to the treatment of property or information belonging to the client and that belonging to the lawyer. The text of the opinion stated:
"Some documents in the possession of a lawyer or law firm may have the status of client 'property,' e.g., a real estate title abstract provided by the client for use in a transaction. If documents do fall into this 'property' category, they must be treated in accordance with the segregation and record keeping provisions of MRPC 1.15 and they must be offered to the client before they can be destroyed.
Some documents if files assembled for the representation of clients 'belong' to the law firm or lawyer, e.g., attorney work product. The law firm and lawyer may properly maintain and destroy the documents that "belong" to the lawyer or law firm without consultation with the client. The important ethical consideration is that the lawyer examine the issue of whether the client must be consulted and whether the provisions of MRPC 1.15 are triggered."
Two years later, formal ethics opinion R-12 (9/27/91) also dealt with document retention. That opinion assumed that the client did not have a property interest in the file per se when it stated:
"If an entire file is composed of pleadings and other documents that are wholly available as permanent records of the presiding court, the lawyer need not notify the client prior to destroying the file in the lawyer's possession."
R-12 also distinguished situations where an original should be retained-"photographs or other personal documents belonging to the client that were given to the lawyer as evidence in the case"-from situations where the paper documents prepared by the lawyer may properly be microfilmed and the paper documents destroyed without notice to the client. The client still would have access to the information, although no paper copy would exist. The opinion did not identify further what, if any, part of a file "belongs" to a client.
Unfortunately, there are informal opinions that bear on property ownership of client files and reach improper and/or erroneous conclusions. In informal opinion RI-63 (10/10/90), the Committee discussed the property ownership by physicians of patient files and opined that a lawyer could refuse to release files obtained by the lawyer from the client's physician who had provided them on the good faith condition that they not be released to the client. This result was reached despite previous holdings regarding the ethical duty to deliver the representation file to a client upon request (CI-716, CI-722, CI-766) and the admonition of MRPC 1.15 that a lawyer should deliver to the client the property that the client is entitled to receive. Although arguably correct on the result, RI-63 is in fact an opinion on an issue of law and is not to be regarded as persuasive in light of subsequent action by the State Bar Board of Commissioners in 1991 stating that ethics opinions should not address such issues.
In RI-203 (3/29/94), the Committee without critical analysis erroneously accepted earlier informal opinions under the Code that opined that the file belonged to the client. It stated:
"If the only purpose is to provide the lawyer with a copy of the file in the event that questions should arise at a later date concerning representation of the client, then the cost of copying should be the responsibility of the withdrawing lawyer as the copying is being done for the withdrawing lawyer's benefit. CI-845
While the obligation to pay for the copies is also a legal contractual issue, in the situation where there is no agreement as to who should pay the costs, the lawyer may not ethically charge the client for production of the files that the client is entitled to receive. CI-926."
Similar erroneous conclusions were reached in RI-245 (11/115/95) where the Committee opined that a "declaration that the client's files are the property of the firm does not recognize that the file actually belongs to the client."
To further complicate the Committee's work, erroneous results were reached in many informal opinions under the prior code, the Disciplinary Rules. Many of the opinions cited as the basis for the conclusion that the files belong to the client actually dealt with access to the files and did not deal with who "owns" the files. See, e.g., CI-495 (1980), CI-716 (1982), CI-722 (1982), and CI-743 (1982). For example, CI-716 and CI-722 analogized directly to access to medical records and did not address file ownership, transfer of originals, or who would pay for copies-only access to information. Subsequently, great unsupportable leaps were made to reach totally erroneous conclusions in some informal opinions. See, e.g., CI-845 (it was "the Committee's view" that the original file belongs to the client). CI-758 did correctly recognize, long before R-12, that what papers the client is entitled to, and what is the client's "property" for purposes of the Disciplinary Rules are questions of law.
The Committee's formal ethics opinions correctly conclude that ownership of materials in a lawyer's or law firm's file is a matter of law, not ethics. R-5, and R-12. There is no legal support in Michigan for the proposition that the files are the property of the client. The applicable legal precedent involving other professionals closely analogous to lawyers demonstrates that the courts have recognized that such professionals provide services, not goods. The client pays for the professional's skill and expertise, not a physical product. The rules are not designed to change what is essentially the lawyer's work product into something belonging to the client. Although several previous informal ethics opinions (see, e.g., CI-845 11/1/82 and CI-926 5/12/83) shifted the copying charges to the lawyer, they are incorrect as they rely on the legally unsupported proposition that the lawyer's or law firm's files belong to or are the property of the client. Such opinions should be disregarded.
Consequently, the lawyer may properly charge for the service of searching the files to provide the client access to information and for the reproduction or other methods of access to such information. To determine what if any portions of the file are the property of the client, the lawyer's files may need to be examined or retrieved from storage. The lawyer may ethically charge the client a reasonable fee for this service. Further, the client is entitled to access to information and materials contained in the lawyer's files to the extent consistent with legal holdings, ethical opinions related to file retention, and any contractual agreements between the lawyer and the client. Although the lawyer may charge for the search, the lawyer may not charge for the return of that portion of the file that is the property of the client. The lawyer may charge for copies or other methods of client access to the information contained in the lawyer's files.
It is recommended but not required that issues relating to file ownership and access, copy charges for information requests, and file destruction practices be described by the lawyer to client in the terms of engagement or some other appropriate disclosure.
In conclusion, the ownership of the physical materials composing the lawyer's or law firm's file is to be distinguished from access to the information contained in them. The client's right is, in general, one of access, not custody or possession. Thus, it is properly the client who should bear the cost of copying and delivering copies of the file records.