Whose File Is It Anyway?

You have been representing a client in a civil litigation matter for over a year. The paper files relating to this matter currently occupy two full file drawers, and the electronic files – correspondence, research, pleading drafts, etc. – occupy many megabytes of memory on your computer hard drive.

The litigation has become protracted and costs have risen beyond your initial estimates. Your relationship with the client has soured, and the client has retained a new lawyer. The client has asked you to turn over the file to the new lawyer.

Are you obligated to turn over the entire file? Are there any items in the file that you don't have to turn over?

There have been many state and local bar association ethics opinions and some caselaw that have addressed this topic. Some of these authorities note that the question of which items in a file belong to the client and which items belong to the lawyer is primarily a question of law. See, e.g., New York State Bar Opinions 780 (2004) and 766 (2003), ABA Informal Opinions 1376 [PDF] (1977) and 1384 [PDF] (1977).

Work product v. end product

When analyzing which items should be turned over to the client, many authorities focus on the distinction between items in a client file that can be considered "work product" as opposed to "end product." Sage Realty Corp. v. Proskauer Rose Goetz & Mendelsohn, 689 N.E. 2d 879 (1977), one of the leading cases in this area, defines end product as follows:

...End product, under the foregoing minority view, includes such items as pleadings actually filed in an action; correspondence with a client, opposing counsel and witnesses; and other papers "exposed to public light by the attorney to further [the] client's interests" (Federal Land Bank v. Federal Intermediate Credit Bank, supra, 127 F.R.D., at 479); and the final versions of contracts, wills, corporate records and similar records prepared for the client's actual use (see, Illinois State Bar Assn., Opn. No. 94-13). Sage Realty Corp. v. Proskauer Rose Goetz & Mendelsohn, 689 N.E. 2d 879 (1997) at 881.

Sage Realty defines "work product" as follows:

...work product...includes all preliminary documents "used by the lawyer to reach the end result," such as internal legal memoranda and preliminary drafts of pleadings and legal instruments (Federal Land Bank v. Federal Intermediate Credit Bank, supra, 127 F.R.D., at 479). Sage Realty, Id. at 881.

Some state bar opinions point out that use of the term "work product" in this context is confusing since it is not necessarily the same concept as "work product" in the legal evidentiary sense. See, Colorado Opinion 104 (1999):

The authorities that discuss this issue unfortunately use the term "work product." The Committee emphasizes that this term may be misleading in that it could be confused with "work product" which is protected against discovery because it relates to mental impressions, conclusions, opinions, or legal theories of an attorney concerning a matter in litigation. For purposes of this opinion, "personal attorney-work product" relates to that portion of the file, such as firm administrative documents, conflicts checks, personnel assignments, and personal lawyer notes reflecting attorney impressions, that is not needed to protect the client's interests and, therefore, need not be produced pursuant to Colo. RPC 1.16(d). Colorado Bar Association Opinion 104(1999).

Other opinions note that the law regarding the discovery of work product is not applicable in an analysis of the ethical issues involved. See, Illinois Opinion 94-13:

...At the outset, the Committee notes that this opinion does not deal with the issue of whether all or any part of a lawyer's file is or may be discoverable in civil litigation or criminal proceedings pursuant to applicable law or rules of court. Although some or all of the materials in question might be considered "work product" in the discovery context, the focus of this opinion is whether a lawyer may properly refuse to deliver or disclose such materials to the lawyer's client under the Illinois Rules of Professional Conduct. Therefore, the law governing discovery of "work product" is not relevant to this inquiry.

Accord, San Francisco Opinion 1990-1. (1990).

Although nearly all authorities on this topic would agree that the lawyer must turn over the end product to the client, there is a split of authority over whether the lawyer is obligated to turn over the work product as well. The majority view is embodied in the Sage Realty case, where the court stated that barring a substantial showing by the firm of good cause to refuse client access, the firm would have to turn over its work product:

...We conclude that the majority position, as adopted in the final draft of the American Law Institute Restatement (Third) of the Law Governing Lawyers, represents the sounder view. First, an expansive general right of the client to the contents of the attorney's file, upon termination of the attorney-client relationship, more closely conforms to the position taken by the courts of this State on the client's broad rights to the contents of the file when representation ceases on a matter still pending.

...Moreover, when the attorney's file is sought in connection with a pending matter, courts also have refused to recognize a property right of the attorney in the file superior to that of the client ...We can discern no principled basis upon which exclusive property rights to an attorney's work product in a client's file spring into being in favor of the attorney at the conclusion of a represented matter. Indeed, this case illustrates that, often, no unequivocal line can be drawn between pending and completed legal matters; hence, the continued likelihood of useful reference to work product materials in the client's file.

Second, the minority position adopted by the courts below unrealistically and, in our view, unfairly places the burden on the client to demonstrate a need for specific work product documents in the attorney's file on the represented matter. Again, this case is illustrative that in a complex transaction where the file may be voluminous (commensurably increasing the likely usefulness of work product materials to advise the client concerning ongoing rights and obligations), the client's need for access to a particular paper cannot be demonstrated except in the most general terms, in the absence of prior disclosure of the content of the very document to which access is sought. The attorney in possession of the contents of the file is in a far better position to demonstrate that a particular document would furnish no useful purpose in serving the client's present needs for legal advice.

The court also stated that the lawyer was not required to turn over all items in the file, including documents that might if released violate the duty of confidentiality to third persons and documents that are intended for internal firm use:

Proskauer, however, should not be required to disclose documents which might violate a duty of nondisclosure owed to a third party, or otherwise imposed by law (see, e.g., Restatement [Third] of the Law Governing Lawyers, op cit., § 58, comment c). Additionally, nonaccess would be permissible as to firm documents intended for internal law office review and use. "The need for lawyers to be able to set down their thoughts privately in order to assure effective and appropriate representation warrants keeping such documents secret from the client involved" (id.). This might include, for example, documents containing a firm attorney's general or other assessment of the client, or tentative preliminary impressions of the legal or factual issues presented in the representation, recorded primarily for the purpose of giving internal direction to facilitate performance of the legal services entailed in that representation. Such documents presumably are unlikely to be of any significant usefulness to the client or to a successor attorney. Upon remittal, which will be required in the instant case, disputes concerning access to these and other categories of internal law firm papers will be resolved in the first instance by Supreme Court through a hearing which might necessitate in camera review. Moreover, Proskauer can apply to that court for protective remedies in the event of oppression or harassment in connection with demands for file inspection, delivery of original documents or reproduction.

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In its analysis, the court relied heavily on the ALI Restatement of the Law Governing Lawyers Subpart 2 of section 46 of the Restatement states:

(2) On request, a lawyer must allow a client or former client to inspect and copy any document possessed by the lawyer relating to the representation, unless substantial grounds exist to refuse.

Subsequent caselaw and state bar opinions have followed the Sage Realty analysis. See, e.g. Swift v Henry, 581 S.E.2d 37 (2003), New York State Bar Opinion 766 (2003). This Opinion withdrew an earlier New York State Bar opinion 398 (1975), stating that as a matter of New York law, a former client is entitled to any document related to the representation unless substantial grounds exist to refuse access. The opinion also stated that "The question of which 'funds, securities, or other properties in the possession of the lawyer' the client (or successor counsel) is entitled to receive is generally a question of law, not ethics, and that the lawyer may charge such former client reasonable fees for assembling and delivering such files, as reflected by customary fee schedules or any governing retainer agreement. See Also Alaska State Bar Opinion 2003-3 (2003). Similar to the Sage Realty case, the Alaska Committee concluded that the firm should not turn over documents that would have the effect of revealing the confidences of third persons. It also stated that the firm need not turn over internal firm documents:

...access may be denied to documents intended for internal law office review and use. This might include, for example, preliminary impressions of the legal or factual issues presented in the representation, that are recorded primarily for the purpose of giving internal direction to staff. Access might also be denied to notes relating to the lawyer's impression of the client. These documents may be withheld unless to do so would significantly prejudice the client.

Colorado Opinion 104 (1999) characterizes "internal law office documents" as "personal work product" and provides a detailed analysis of what types of documents can be considered to be personal work product.

See also Arizona Bar Opinion 04-01 (2004) (a lawyer may not withhold his own work product unless he can establish that doing so would not prejudice the client) and Louisiana Opinion 05-RPCC-003 [PDF] (2005). An excerpt from a digest of Oregon State Bar Opinion 2005-125 [PDF] (2005) states as follows:

A lawyer discharged by a client in a pending matter, with no fees owing, must comply with the client's request to provide the client's new lawyer with a copy of the file. The client is entitled to all papers and property the client provided, all litigation materials, all correspondence, all items the lawyer has obtained from others, and all notes or internal memorandums that may constitute work product. The client is not, however, entitled to any memorandums from other cases that the lawyer may have included in the client's file. Nor is the client entitled to the lawyer's notes bearing on the lawyer-client relationship rather than on the merits of the client's position, for example a notation that the lawyer has consulted his own counsel to explore potential exposure to discipline or malpractice liability. A lawyer asked by a former client in a closed matter for a copy of his file is under the same obligation. Opinions 2005-81, 2005-90, 2005-96, 2005-124; Rules 1.15-1(d), 1.16(c)(d).

Some states' versions of Rule 1.16(d) provide more specific guidance in this area. See, e.g., the following excerpt from Louisiana Rule of Professional Conduct 1.16(d) that states:

...Upon written request by the client, the lawyer shall promptly release to the client or the client's new lawyer the entire file relating to the matter...

The full text of the Louisiana Rules is available here [PDF]. See also North Dakota Rule 1.19 titled "Files, Papers and Property Related to a Representation."

ABA Informal Opinion 1376 [PDF] (1977) appears to state that a lawyer need not turn over work product. The opinion does not specifically refer to work product, but the statement that the lawyer need not deliver his internal notes and memos is at the very least an oblique reference to the concept. Opinion 1376 involved a situation where a client had requested that his lawyer return his file to him. The opinion listed the items that were in the file and stated:

The attorney clearly must return all of the material supplied by the client to the attorney. He must also deliver the "end product" ...for which the client has paid.

...On the other hand, in the Committee's view, the lawyer need not deliver his internal notes and memos which have been generated primarily for his own purposes in working on the client's problem.

Between these extremes are the items about which you may be uncertain. in the Committee's view, upon request by the client you should deliver all other material which is useful to the client in benefiting fully from services he has purchased from you. From your description, this would appear to include all significant correspondence, applications and material filed in aid thereof, receipts, documents received from third parties, significant documents filed in the administrative and court proceedings, finished briefs whether filed or not if they pertain to the right of the client to the use or registration of the mark in question.

...It must be kept in mind that the Committee cannot answer questions of law. In the gray areas, what is the lawyer's property in a particular case are questions of law governed by the law of the applicable jurisdiction.

Other state bar opinions state that the lawyer need not return work product. See, e.g., Mississippi Opinion 236 (undated), Connecticut Opinion 03-02 (2003), Illinois State Bar Opinion 94-13 (1994), Rhode Island Opinion 93-76 [PDF] (1993), Rhode Island Opinion 2000-06 [PDF] (2000). See Also Federal Land Bank v. Federal Intermediate Credit Bank, 127 F.R.D. 473 (1989).

For additional information on this topic, see the additional resources page.

ETHICSearch is intended to stimulate awareness of ethical problems and illustrate the varying approaches of different jurisdictions. It is not intended as legal advice. The ABA Model Rules of Professional Conduct and the opinions discussed are advisory only; the ethics rules, laws and court decisions of your jurisdiction may dictate a different result.

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