This opinion has been questioned and modified in ethics opinion R-19, effective August 4, 2000
January 18, 1982
A lawyer in possession of a former client's file has an ethical duty, upon request by the former client, to deliver the file to the former client or newly retained counsel. This duty extends to a lawyer who has come into possession of files generated by a previous lawyer.
This opinion concerns the right of a former client to a closed file. The lawyer requesting the opinion is confronted with the situation where the lawyer is in possession of a case file generated by a deceased lawyer whose former office is now occupied by the lawyer requesting the opinion. The case file concerns a matter concluded by judgment entered more than 5 years ago. The lawyer is aware that the former client has filed a petition to set aside the judgment, alleging that the deceased lawyer did not provide proper representation. Counsel for the former client, as well as counsel for the party that was adverse to the former client, has both requested the case file, or a copy.
An opinion is requested as to whether the file or a copy thereof, should be given to both the former client and to the party that was adverse to the former client in the litigation. If so, should the entire file be delivered, or may the lawyer remove items such as notes, memoranda and correspondence. Additionally, the lawyer seeks guidance as to whether anything should be done to protect the estate of the deceased lawyer in the event that a lawsuit is brought against the estate.
The Committee cannot advise concerning a possible claim against the estate of the deceased lawyer since this would involve analysis of facts and law which are beyond the scope of the committee's duties.
Where a former client requests the file and the lawyer, or the lawyer's successor, 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 opinion C0724 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 the client chooses, to the client's general counsel." While Michigan has not adopted the ethical considerations of the 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.
DR 4-101 of the Code of Professional Responsibility requires that a lawyer preserve the confidences and secrets of the client. Additionally, EC 4-6 addresses the problem of the lawyer disposing of a practice and, in particular, cautions that the confidences and secrets of the client be protected in the transfer of the practice. It would be highly improper to furnish a copy of the file to the party who was adverse to the former client in the previous litigation.
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 attorney records and therefore all notes, memoranda and correspondence should be included in the file.