This opinion has been questioned and modified in ethics opinion R-19, effective August 4, 2000.
June 30, 1982
A lawyer in possession of a file concerning a former client has an ethical duty, upon request from the former client, to deliver the file, including but not limited to, all "write-ups," "work-up or intake sheets," and "file interview notes," to the former client or newly retained counsel, with the possible exception of the lawyer's personal observation notes or memos with respect to the client's character or competency traits and, particularly, if and when negative.
References: CI-716, CI-722.
A former inactive client requested that the client's file be forwarded to another lawyer. Pursuant to such request, the lawyer admitted that all pertinent file documents were transferred to the attention of the client's newly selected counsel. The new counsel further requested all "write-ups," "work-up or intake sheets" and file interview notes. The lawyer indicated that it the lawyer's position that given the nature of the described requested file materials, the lawyer is not ethically bound to forward these additional documents. What duties, if any, is a lawyer obligated to perform as they relate to the forwarding of "work product" documents to a newly selected substitute counsel.
It has been held by this Committee, that where a former client requests a 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. CI-716, CI-722.
Specifically, CI-716 held that all notes, memoranda and correspondence should be included in the file. Substituted counsel is entitled to the benefit of 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." It is therefore, concluded that the substituted lawyer has the ethical right to demand and receive the subject mentioned materials.
However, a client notwithstanding the fact that moneys have been paid for legal representation is not entitled per se to any and all documents contained in a lawyer's legal file. Specifically, a lawyer's personal observations notes or memoranda with respect to a client's character or competency traits particularly if and when negative, probably should not be released.