RI-392

December 12, 2025

SYLLABUS

Termination of a lawyer-client relationship can be fraught. A common source of friction following termination is the proper disposition of files of the terminated lawyer. Who is entitled to receive which files, and who pays to make them properly available, are recurring issues answered in large part by existing Michigan ethics authorities. Heretofore unresolved questions may usually be answered by reference to what is reasonably necessary to protect the client’s interests.

Prior opinions conclude that a client has a right of access to, but not rights of ownership of, a terminated lawyer’s files. That right of access extends, at a minimum, to materials filed with a court or other tribunal, published to or received from third parties, or reasonably needed to protect the client’s interests under the circumstances. A lawyer must provide such access on reasonable terms that depend on the form in which the files are maintained. A lawyer may charge the reasonable cost of retrieval and duplication of files to which access is requested by the client. Ordinarily, a lawyer need not grant access to internal files that relate to the lawyer’s administration of the representation. A lawyer may withhold materials prepared by outside professionals and vendors pending payment to which the client has agreed, unless the client is unable to pay for those expenses and has critical need of the materials to protect the client’s interests. A lawyer must promptly return client property entrusted to the lawyer but may assert a retaining lien over such property as security for unpaid fees and costs. The lawyer may be required to grant access to client property over which the lawyer has asserted a retaining lien if the client is unable to pay the lawyer and has critical need to access the property to protect the client’s interests.

References: MRPC 1.15, 1.16; R-5, R-12, R-19, RI-63, RI-100, RI-109, RI-203, RI-241, RI-364; MCR 9.103; ABA Formal Opinion 471 (2015); MCL 333.26261; MCL 722.627; MCR 6.005(H)(3); MCR 9.301; Leibel v General Motors Corp, 250 Mich App 229; 646 NW2d 179 (2002); Seyburn, Kahn, Ginn, Bess, Deitch and Serlin, PC v Bakshi, 483 Mich 345; 771 NW2d 411 (2009); Twin Sewer and Water, Inc v Midwest Bank and Trust Co, 308 Ill App 3d 662; 720NE2d 636 (1999); Maleski v Corporate Life Insurance Co., 163 Pa Cmwlth 49; 641 A2d 7 (1994); Kysor Ind Corp v D M Liquidating Co., 11 Mich App 438; 161 NW2d 452 (1968); Maleski v Corporate Life Insurance Co., 163 Pa Cmwlth 49; 641 A2d 7 (1994); Restatement (Third) of the Law Governing Lawyers § 43 (2000); Restatement (Third) of the Law Governing Lawyers § 46 (2000); Illinois State Bar Assn, Opn. No. 94–13. 

TEXT

In August 2000, the State Bar of Michigan Professional Ethics Committee (“Committee”) issued Formal Opinion R-19, which clarified rights and duties of lawyers and their clients with respect to lawyers’ files. Among other things, R-19 opined that a client’s right is one of access rather than possession or ownership.¹ While R-19 provided helpful guidance on the subject of lawyer files, several questions persist: What does “access” to the files mean? To what portions of the lawyer’s file does a client have a right of “access”? How many times must “access” be granted? These and related questions were not answered specifically in R-19 but frequently arise in the context of termination of a lawyer’s representation. 

Clients have rights to representation by counsel of their choosing, including the right to terminate one lawyer and employ another. Lawyers have more limited rights to terminate representation as prescribed in MRPC 1.16. No matter the circumstances of termination, the exercise of that right can cause friction. Michigan Rule of Professional Conduct 1.16 prescribes a lawyer’s duties upon “declining or terminating representation” of a client. Rule 1.16(d) provides: 

(d) Upon termination of representation, a lawyer shall take reasonable steps to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled, and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by law. 

Rule 1.16(d) thus requires a lawyer, inter alia, to “surrender” papers and property to which the “client is entitled[.]” That obligation begs two questions: What does it mean to “surrender” papers and property, and what exactly are the papers “to which the client is entitled”? These are the questions that were answered, in large part, by Formal Ethics Opinion R-19.  

I. Formal Opinion R-19

A) Access to, Rather Than Ownership of, a Lawyer’s File

In Formal Opinion R-19, the Committee reviewed prior ethics opinions that state or imply that a lawyer’s file belongs to the client and concluded that such opinions are unsupportable. The opinion states that ownership of the file is a question of law and that prior opinions rest on the improper premise that the client owns the file. The Committee deemed that issue one of law, not ethics. While not expressly opining on the legal question of ownership, the Committee noted that in analogous situations courts have held that “the client pays for the professional’s skill and expertise, not a physical product.” This conclusion finds support in laws covering records of other service providers.²

Formal Opinion R-19 is commonly perceived as establishing that the lawyer, not the client, is the “owner” of the lawyer’s file. While the Committee expressly declined to opine on that question of law, R-19 implies this conclusion by stating that the client does not have possessory rights to file materials: “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.”³  

Thus, the client has a right to access the file but not a right to exercise dominion and control over the physical file itself.⁴  

B) Proper Means of Giving Access 

Where files are maintained in electronic form, it is convenient and economical, for lawyer and client alike, for the lawyer to copy the files to an electronic storage medium for the client. The cost of retrieval and transfer are properly charged to the client. Where the files are maintained in paper form, it is appropriate to allow the client or successor counsel to view the files at the lawyer’s office or other agreed location. Copies should be made as designated by the client or the client’s successor counsel. The cost of retrieval and duplication are properly charged to the client.⁵ 

C) When Copies Are Requested: Electronic vs Paper  

One implication of R-19’s conclusion that the client is entitled to “access” the lawyer’s file is that the information can be provided in any format that ensures availability to the client.⁶ For example, the information may be provided in electronic format, such as through a secure client portal. There is no requirement that information be provided in the format in which it was originally received. 

Formal Opinion R-12 supports the view that files maintained electronically may be “surrendered” to the client in electronic form (“If the ‘original file’ does not contain documents personal to the client, or if the file contains only documents that are available from the public record, and the client’s interests are protected in a microfilm copy, then the lawyer need not obtain client input prior to destruction of a paper file which is maintained on microfilm.”) 

D) Scope of Information to Which Access Must Be Given 

The overarching theme of MRPC 1.16(d) is the protection of client interests.⁷ Consequently, the scope of a client’s right of access is affected by what the client reasonably needs to protect those interests.  

1) Reasonable Needs 

In ABA Formal Opinion 471 (2015), the American Bar Association Standing Committee on Ethics and Professional Responsibility analyzed what constitutes the “lawyer’s file” that a client is entitled to receive. The ABA Committee surveyed various state approaches and determined that a majority of states follow the “entire file” approach, under which: “at the termination of a representation, a lawyer must surrender papers and property related to the representation in the lawyer’s possession unless the lawyer establishes that a specific exception applies and that certain papers or property may be properly withheld” (emphasis added) (footnote omitted). Thus, the “entire file” approach puts the onus on the lawyer to justify withholding a portion of the information contained within the lawyer’s file rather than on the client to establish a need to access specific information to protect the client’s interests. The ABA Committee noted potential exceptions, such as materials that would violate a duty of nondisclosure to another person; materials containing information which, if released, could endanger the health, safety, or welfare of the client or others; and internal memoranda regarding the representation, including a lawyer’s assessment of the client.  

The ABA Committee observed that other jurisdictions follow the “end product” approach, under which a client is entitled to receive “correspondence by the lawyer for the benefit of the client; investigative reports and other discovery for which the client has paid; and pleadings and other papers filed with a tribunal. The client is also entitled to copies of contracts, wills, corporate records, and other similar documents prepared by the lawyer for the client” Id. (footnotes omitted). 

The Restatement (Third) of the Law Governing Lawyers also provides guidance on the scope of files that must be provided to a client upon termination. Restatement Section 46 provides, in relevant part: 

(3) Unless a client or former client consents to nondelivery or substantial grounds exist for refusing to make delivery, a lawyer must deliver to the client or former client, at an appropriate time and in any event promptly after the representation ends, such originals and copies of other documents possessed by the lawyer relating to the representation as the client or former client reasonably needs. 

There is no Michigan case law or other authority definitively categorizing Michigan as an “entire file” or “end product” jurisdiction. Like its ABA counterpart, the Committee believes it would not be appropriate or helpful to classify or purport to declare Michigan to be an “entire file,” “end product,” or hybrid jurisdiction. Doing so could lead to categorical conclusions about what must be provided from a lawyer’s files, without regard to unique circumstances of the representation and client. Instead, the Committee opines that the focus should remain on what is reasonable to protect the client’s interests. Consistent with ABA Formal Opinion 471 and the Restatement (Third) of the Law Governing Lawyers § 46, upon termination of representation, a lawyer must provide a client with access to at least the following documents:  

• Pleadings that have been filed or that are complete and ready to be filed;  
• Other information “exposed to public light by the attorney to further [the] client’s interests”⁸; 
• Original documents provided to the attorney by the client; 
• Correspondence issued or received by the lawyer in connection with the representation of the [client] on relevant issues, including email and other electronic correspondence; 
• Discovery propounded or produced, including interrogatories and their answers, deposition transcripts (for which the client has paid), expert witness reports (for which the client has paid), witness statements, and documents produced; 
• Legal opinions (for which the client has paid); 
• Third-party assessments, evaluations, or records (for which the client has paid);  
• Final versions of estate planning and transactional documents, settlement agreements, and similar information or documents (for which the client has paid);⁹  
• Applications filed on the client’s behalf, such as intellectual property filings, Medicaid applications, driver’s license restoration applications, applications to municipalities or other governmental entities, etc.; and 
• Billing statements. 

Typically, a lawyer need not provide access to a lawyer’s internal administrative materials, such as: 

• Internal conflict checks;  
• Firm assignments;  
• Notes regarding an ethics consultation or potential malpractice claim against the lawyer¹⁰;  
• General assessments of the client or the client’s matter; and  
• Documents that might reveal the confidences of other clients. 

Certain documents are considered confidential and, absent extraordinary circumstances, should not be provided to the client: 

• Materials containing information which, if released, could endanger the health, safety, or welfare of the client or others; 
• Materials that would violate a duty of nondisclosure to another person;  
• Medical records “when a physician releases a patient’s medical file to the patient’s lawyer on condition that the file only be revealed to the client under certain conditions, and the physician’s decision is neither arbitrary, capricious, nor in bad faith but solely for the patient’s best interests;” in such cases, “the lawyer may refuse to release the files to the patient/client until the physician’s stipulations are met”¹¹; and  
• Confidential child protection proceeding records pursuant to MCL 722.627.  

The above lists should be considered general guidelines rather than fixed categories. For example, certain internal files, though not required to be made accessible to a client as a matter of ethics, may be required to be produced in discovery in a malpractice action. Also, while a lawyer presumptively need not provide a former client access to preliminary drafts of pleadings, papers, and transactional documents, there may be circumstances where protection of a client’s rights requires granting access to those and other files. See the discussions on “Work-in-Process” and “Liens,” infra. 

2) Access to Specific Documents 

(a) Investigative and Expert Reports 

Clients are entitled to access investigative and expert reports for which the client directly or indirectly paid.¹² This includes expert reports, appraisals, accountings, and similar documents generated as part of the legal representation. However, if the client has not paid for the information generated at the lawyer’s expense, the lawyer may withhold such documents until payment is made, unless the client is unable to pay for the materials and has critical need¹³ of the materials to protect the client’s interests.¹⁴  

(b) ”Original” Information and Client Property 

If the client provides “original” material to the lawyer and that material becomes part of the lawyer’s file, that material must be returned to the client.¹⁵ MRPC 1.15 requires safekeeping of client or third-party property. Thus, the lawyer must keep the documents or information confidential,¹⁶ provide it to the owner upon request, and maintain an account of the property received for a period of five years. Client-owned original documents may include business books and records, tapes, computer media, deeds, original wills, original contracts made the subject of litigation, documents or photographs used as exhibits, stock certificates, or other documents provided by the client which have legal significance. It also includes documents that may require authentication. In the electronic era, there is no reason for a lawyer to maintain this information in its original format unless an original is required for litigation.  

(c) Work-in-Process 

A frequently-recurring issue is whether a client is entitled to access a lawyer’s work-in-process (aka “work-in-progress”). This concept is distinct from the ”attorney work product doctrine,” which pertains to whether certain materials prepared in anticipation of litigation are protected from compelled disclosure to third parties¹⁷ rather than what must be made available to the client.  

It is an open question in Michigan whether a lawyer must always grant a client access to a lawyer’s work-in-process generated during the representation, such as research memoranda, drafts of briefs, and summaries. In the opinion of the Committee, each situation must be assessed separately, again through the lens of whether granting access to specific materials is reasonably necessary to protect the client’s interests.