These summaries were prepared by McGuireWoods LLP lawyer Thomas E. Spahn. They are based on the letter opinions issued by the Virginia State Bar. Any editorial comments reflect Mr. Spahn's current personal views, and not the opinions of the Virginia State Bar, McGuireWoods or its clients. 
 
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  Topic: 14 - Ownership of Files and Attorney Lien Issues
LEO NumTopicsSummaryDate
1339

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14-Ownership of Files and Attorney Lien Issues

[WITHDRAWN 11/16/12] A lawyer must surrender an original Power of Attorney document to the client, but "should preserve a copy of the document in order to make it available should allegations be raised as to the attorney's conduct."5/8/1990
1571

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5-Lawyers Changing Jobs

8-Bills and Fees

12-Withdrawing Lawyers (Including Non-Compete Issues)

14-Ownership of Files and Attorney Lien Issues

21-Reporting Another Lawyer's Unethical Conduct

A client hired a lawyer who was acting as an independent contractor/associate of a law firm. The retention letter required the client to reimburse the law firm on a quantum merit basis if the client chose to terminate the relationship, and also required the client to pay one-third of any settlement amount to the law firm if negotiations had begun before the relationship was terminated. The individual lawyer left the firm and continued to represent the client. The law firm asserted an attorney's lien on any settlement amount, but refused to provide an itemization of services when requested by the client. The Bar held that the law firm's refusal was improper, and raised a substantial question about its lawyer's fitness to practice law and therefore must be reported to the Bar. 7/12/1994
0352

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14-Ownership of Files and Attorney Lien Issues

A court-appointed lawyer must return the client's files to the client upon request after being fired. [Rule 1.16(e) governs a lawyer's duty to provide files to a former client.]1/7/1980
1418

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14-Ownership of Files and Attorney Lien Issues

48-Criminal Defense Lawyers

A court-appointed lawyer represented a criminal defendant. The lawyer sent the defendant copies of all pleadings and correspondence, and also kept a diary during the representation. The client later charged ineffective assistance of counsel, and sought copies of all pleadings and correspondence, as well as the lawyer's diary. The lawyer must provide copies of the entire file, including the diary (unless it contained information relating to other representations). The lawyer could not condition release of the documents on payment for copying charges. The Bar declined to determine whether the original or a copy of the documents must be surrendered, deeming it a legal question. [Rule 1.16(e) now governs a lawyer's duty to provide files to a former client.]5/14/1991
1485

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14-Ownership of Files and Attorney Lien Issues

A discharged lawyer refused to hand-deliver the files to the client unless the client acknowledged the file's receipt. Instead, the lawyer mailed the file via certified mail, return receipt requested. The lawyer also reminded the client that the statute of limitations would lapse in two weeks. The Bar confirmed that "since the file is the property of the client, the attorney must surrender the file on demand except where he may lawfully refuse to do so." The Code does not contain any receipt requirement, "and the continued protection of the client in this case would be served better by immediate delivery of the file to the client than by mailing it by certified mail, return receipt requested." [Rule 1.16(e) now governs a lawyer's duty to provide files to a former client.]2/9/1993
1366

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14-Ownership of Files and Attorney Lien Issues

A former client is entitled to the entire contents of a former lawyer's files, even multiple drafts, the lawyer's notes and internal memoranda. [Rule 1.16(e) now governs a lawyer's duty to provide files to a former client.]7/24/1990
1403

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12-Withdrawing Lawyers (Including Non-Compete Issues)

14-Ownership of Files and Attorney Lien Issues

38-Fee Splitting

A law firm may not prohibit a withdrawing associate from contacting any of the firm's clients until they decide on counsel, because such a rule would restrict the withdrawing lawyer's right to practice. Likewise, the law firm may not declare that all client files belong to the firm and that the withdrawing associate must share fees with the law firm. 3/12/1991
0956

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12-Withdrawing Lawyers (Including Non-Compete Issues)

14-Ownership of Files and Attorney Lien Issues

45-Law Firms - Miscellaneous

A law firm may not sell its name or goodwill, but may sell physical assets. A lawyer taking over a practice should notify clients of their right to select another lawyer and give direction about the disposition of their files (which should not be transferred without disclosure to the clients). [Rule 1.17 permits the purchase or sale of a law firm's practice, including good will, under certain circumstances.]8/21/1987
0323

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12-Withdrawing Lawyers (Including Non-Compete Issues)

14-Ownership of Files and Attorney Lien Issues

A law firm may not withhold a client's file pending payment of a fee when the client is to be represented by an associate who leaves the firm. [This LEO is overruled by Rule 1.16(e), which governs a lawyer's duty to provide files to a former client.]5/15/1979
1322

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8-Bills and Fees

14-Ownership of Files and Attorney Lien Issues

A lawyer may charge a "retainer" to "insure the attorney's availability and as consideration for the lawyer's unavailability to potential adverse party" where the client seeks to secure the lawyer's employment "for representation of his interests in any matter which may arise in the future." On the other hand, a "specific sum paid at the time an employment agreement is entered into" to "secure the lawyer's legal services for a specific . . . matter" is "deemed to be an advanced legal fee which has been entrusted to the lawyer" but which still belongs to the client. Here, the "non-refundable retainer" was improper "since funds which are entrusted to a lawyer by a client for the lawyer's services on a specific matter are deemed to be 'advanced legal fees' and belong to the client."A lawyer may not insist that a prospective client sign an agreement permitting the lawyer to keep any work product, because the work product belongs to the client. 2/27/1990
0996

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14-Ownership of Files and Attorney Lien Issues

A lawyer may maintain a lien on a check paid to satisfy a judgment obtained in litigation that the lawyer warned might cost more than it was worth. 11/13/1987
1357

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14-Ownership of Files and Attorney Lien Issues

A lawyer may not refuse to let a former client or the former client's new lawyer know the contents of the client's file in the lawyer's possession. At a minimum, the lawyer must advise the former client of portions of the file that belong to the client or for which no further fee is owed. ([Rule 1.16(e) now governs a lawyer's duty to provide files to a former client.]6/7/1990
0465

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14-Ownership of Files and Attorney Lien Issues

A lawyer may retain a client's documents pending payment of the lawyer's fees if it would not prejudice the client and the client is not otherwise legally entitled to possession of the property. [This LEO was overruled by Rule 1.16(e), which governs a lawyer's duty to provide files to a former client.]9/20/1982
1124

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14-Ownership of Files and Attorney Lien Issues

A lawyer may retain a client's file if the lawyer has not been paid and retaining the file would not prejudice the client (as long as there is no dispute about the fees and the client can afford to pay them). The lawyer may be obligated to show the client the files if the client would otherwise be prejudiced. Any copying charges are "subject to available legal remedies for collection." ([This LEO was overruled by Rule 1.16(e), which governs a lawyer's duty to provide files to a former client.]9/27/1989
0292

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14-Ownership of Files and Attorney Lien Issues

A lawyer may retain a client's file until the lawyer is paid, as long as it does not prejudice the client. [Rule 1.16(e) governs a lawyer's duty to provide files to a former client.]3/31/1978
0871

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14-Ownership of Files and Attorney Lien Issues

A lawyer may retain the client's files until unpaid bills are paid, as long as the law authorizes the retention. [Rule 1.16(e) governs a lawyer's duty to provide files to a former client.]1/19/1987
0559

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14-Ownership of Files and Attorney Lien Issues

36-Withdrawal from Representations

A lawyer may withdraw from representing a personal injury client before filing a lawsuit as long as the lawyer advises the client of: the withdrawal; the applicable statute of limitations; the necessity of the client hiring another lawyer; and the client's entitlement to the return of papers and property. (4/10/84) [Rule 1.16(e) governs a lawyer's duty to provide files to a former client.]4/10/1984
1157

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14-Ownership of Files and Attorney Lien Issues

A lawyer must promptly deliver the file to a client when requested. The Bar declines to determine if the employer or the employees are entitled to the file when the former hires a lawyer to represent the latter. [Rule 1.16(e) governs a lawyer's duty to provide files to a former client.]10/18/1988
1305

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14-Ownership of Files and Attorney Lien Issues

39-Miscellaneous

A lawyer need not maintain a clients' files indefinitely. Before destroying a file, the lawyer should offer to return any original documents or other client property, and should not destroy any documents the client might later need. The Bar apparently did not provide specific guidance on whether the documents should be shredded or incinerated. 11/21/1989
1519

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14-Ownership of Files and Attorney Lien Issues

76-Trust and Estate Lawyers

A lawyer prepared a will for a client, but the client died before signing the will. Upon request, the lawyer must turn over the unexecuted will and the rest of the file to the deceased client's personal representative (assuming no fees are owed). [Rule 1.16(e) now governs a lawyer's duty to provide files to a former client.]5/11/1993
1789

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14-Ownership of Files and Attorney Lien Issues

54-Insurance Defense Lawyers

56-Duty to Advise the Court

A lawyer representing a client (seeking Social Security disability benefits for "disabling mental impairments affecting both personality and judgment") who has obtained a report on the client prepared by the client's treating psychologist at the request of and at the expense of the client's long term disability insurance carrier: is bound by Rule 1.4's duty to communicate material facts to the client, if there is an existing attorney client relationship; must comply with Rule 1.16 if the attorney client relationship has ended; may not follow the carrier's direction about the report, if following the direction would violate the lawyer's ethical duties to the client; may be guided by Rule 1.14 if the client is suffering from an impairment (for instance, "while an attorney may never withhold a medical report from a client merely at the request of some other party, in rare instances, an attorney may appropriately consider whether the client is able to act in his own interest with respect to requesting the information"); may be governed by other substantive law covering medical records.2/20/2004
0431

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14-Ownership of Files and Attorney Lien Issues

A lawyer who maintains files has a property right in the files themselves, although the client has a "paramount right" to the information in the files. If requested, a lawyer should retain originals but may charge the client for copying other materials given to the client. [Rule 1.16(e) governs a lawyer's duty to provide files to a former client.]10/16/1981
1790

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14-Ownership of Files and Attorney Lien Issues

39-Miscellaneous

A lawyer who receives a copy of a probation officer's pre-sentence report must provide a copy of the report to the lawyer's client, unless disclosure is prohibited by law -- an issue outside the Committee's purview.1/5/2004
0331

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14-Ownership of Files and Attorney Lien Issues

40-Trust Accounts

A lawyer who receives real estate trust funds from a non-client may not use the funds to pay an amount owed to the lawyer, unless the non-client consents. 7/30/1979
1171

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14-Ownership of Files and Attorney Lien Issues

A lawyer's files belongs to the client, and the lawyer must surrender the files to the client upon request. If the lawyer wants to make a copy for the lawyer's own use, the lawyer must pay for the copy and may not condition the release of the files upon receiving payment for the copy. Rule 1.16(e) governs a lawyer's duty to provide files to a former client.]2/13/1989
1307

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14-Ownership of Files and Attorney Lien Issues

31-Protecting and Disclosing Confidences and Secrets

A lawyer's files may be reviewed to determine if non-legal documents may be given to an institution (for historic archives) as long as the attorney-client privilege is not breached by having an outsider examine the files. 11/13/1989
1101

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14-Ownership of Files and Attorney Lien Issues

Although a lawyer may retain a client's file if a bill has not been paid, the lawyer may have to let the client see the file if the client would otherwise be hurt. In discussing ownership of work product, the committee reiterated that "the client owns the attorney work-product whether in tangible, documentary form or in the intangible provision of the attorney's expertise in having applied the law to the client's fact situation during the course of the representation." [This LEO was overruled by Rule 1.16(e), which governs a lawyer's duty to provide files to a former client.]9/29/1989
0374

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14-Ownership of Files and Attorney Lien Issues

29-Advancing Fees and Costs

As long as the client is not prejudiced or otherwise entitled to possession of the deposition transcript, a lawyer may retain a deposition transcript for which the lawyer has advanced costs even after being fired. A lawyer may advance costs only if the client agrees to repay them regardless of the litigation's outcome. [Rule 1.8(e)(2) exempts indigent clients from this requirement.]6/17/1980
1864

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14-Ownership of Files and Attorney Lien Issues

48-Criminal Defense Lawyers

As long as their clients consent after full disclosure, criminal defense lawyers may enter into an agreement with prosecutors under which defense lawyers may "share and show the contents" of exculpatory evidence (such as the "identities and locations of cooperating witnesses and graphic photographs of the victims") but not provide the evidence to their clients to keep. The criminal defense lawyers may also agree to return such exculpatory evidence to the prosecutors "prior to the conclusion of [their] representation of the defendant." However, because "any materials that are in the lawyer's file at the conclusion of the representation must be provided" to the client, criminal defense lawyers should plan for the possibility that the representation might be "terminated unexpectedly" with the exculpatory evidence still in the lawyers' possession and thus available to the clients. To avoid this issue, criminal defense lawyers "should seek informed consent, preferably in writing, from [their] client before agreeing to this restriction on the client's access to information upon termination of the representation." Absent such an agreement, criminal defense lawyers "should not accept 'sensitive materials' that would be subject to" the clients' demand for entitlement to access when the representation ends.10/24/2012
1664

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14-Ownership of Files and Attorney Lien Issues

31-Protecting and Disclosing Confidences and Secrets

Because a lawyer's duty to maintain confidences and secrets survives the client's death, a lawyer may not provide a former client's historically significant files to a university without either obtaining the client's consent or determining that the files contain no confidences or secrets; a lawyer may give limited information to an outside agency if it is necessary for the lawyer to perform the lawyer's job, but the lawyer must be careful in selecting the agency and instruct the agency that the information must be kept confidential; information is no longer confidential once it becomes a matter of public record unless it is a "secret"; "an implied (though not formal) attorney-client relationship can arise whenever a lawyer receives confidences or secrets from a person who had an expectation of confidentiality even if no representation resulted." 2/9/1995
1176

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14-Ownership of Files and Attorney Lien Issues

Even if applicable law would allow a lawyer to retain a client's file until the lawyer's bill is paid, the lawyer might be acting unethically by retaining the files (depending on such facts as "the ability of the client to pay the fee, whether the fee is in dispute and the harm to the client if the papers are retained"). [This LEO was overruled by Rule 1.16(e), which governs a lawyer's duty to provide files to a former client.]12/19/1988
ABA-471

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14-Ownership of Files and Attorney Lien Issues

Fully paid lawyers must comply with ABA Model Rule 1.15 and ABA Model Rule 1.16 when former clients ask for their files. The ABA largely rejected the majority "entire file" approach, under which lawyers must point to an exception when withholding any portion of their files requested by a client or former client. The ABA instead adopted the "end product," approach, although indicating lawyers may have a duty to disclose internal law firm documents, drafts, etc., if withholding those would prejudice former clients -- especially in the context of uncompleted work. Under the majority "entire file" standard, lawyers must provide the whole file unless an exception applies, such as: materials the disclosure of which will endanger third parties or violate some duty; "materials containing a lawyer's assessment of the client"; or "documents reflecting only internal firm communications and assignments." Under the minority "end-product approach" the ABA endorsed, lawyers must provide documents received from the client; correspondence; reports; discovery; and filed pleadings. Lawyers under this approach need not provide any drafts of final documents or internal law firm documents relating to conflicts, time records, or personnel matters. Lawyers' previously supplying materials to the client "is not dispositive" of the lawyers' obligation to surrender materials when the representation ends. Lawyers should explain in their retainer letter "who is responsible for the costs of copying [documents the lawyer surrenders to the former client] and under what circumstances.7/1/2015
1187

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8-Bills and Fees

14-Ownership of Files and Attorney Lien Issues

If a client has received notice and does not dispute the fees, a lawyer may deduct fees owed from a previous case at the time of settling a contingent fee case. [Deducting fees from an unrelated matter would almost surely require the client's consent.] 1/4/1989
1544

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14-Ownership of Files and Attorney Lien Issues

If the client would otherwise be prejudiced, a lawyer must turn a client's file over to the lawyer's successor even if the lawyer has not been paid legal fees or costs and the client apparently is investigating an action against the lawyer. "[T]he paramount concern still remains the avoidance of prejudice to the client and, therefore, regardless of whether the client reimburses the law firm for litigation costs or pays the firm for its services, the client is entitled to copies of or possession of the original file documents if withholding such documents would prove prejudicial to the client." [Rule 1.16(e) now governs a lawyer's duty to provide files to a former client.]10/20/1993
1503

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14-Ownership of Files and Attorney Lien Issues

60-Lawyers Acting as Trustees

The Bar declines to indicate whether a lawyer acting as trustee may assert an attorney's lien over property held in trust. 12/14/1992
1591

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14-Ownership of Files and Attorney Lien Issues

36-Withdrawal from Representations

40-Trust Accounts

The Code permits a lawyer to withdraw from representing a client and to exert a common law possessory lien on funds being held in trust for the client. 6/14/1994
1818

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14-Ownership of Files and Attorney Lien Issues

39-Miscellaneous

45-Law Firms - Miscellaneous

There is no per se prohibition on lawyers keeping all of their files in electronic form, but lawyers must: (1) retain paper documents that might be required (such as "testamentary documents, marriage certificates, or handwriting exemplars"); (2) recognize that although the rules "do not specify the form of file maintenance," a lawyer considering destroying a client's paper file "should review that file to make sure that any documents that may be of continued use or benefit to the client only if they are maintained in paper form are not destroyed."9/30/2005
1690

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14-Ownership of Files and Attorney Lien Issues

36-Withdrawal from Representations

This is a Compendium Opinion on a lawyer's obligation to surrender files to a client who has not paid the lawyer's fee. The Bar indicates that the "ethical mandate [to avoid prejudicing the client] virtually displaces the common law retaining lien" because the lien "almost invariably will cause (and is designed to cause) prejudice to the former client's interests." Therefore, "assertion of the lien is not ethically permissible . . . whenever doing so will materially prejudice the former client's interests."A lawyer may not charge a client for copying the files upon termination of the relationship even if the lawyer supplied the documents during the course of the representation. The Bar also rejects the notion that the client is entitled only to "finished work product," instead holding that "workproduct in every form should be surrendered if withholding it would materially prejudice the former client's interests." However, the Bar indicates that "more is required to establish prejudice with respect to lawyer workproduct than to client-provided papers." The Bar holds that a lawyer may not condition release of the documents on the client signing a receipt.The sort of "delivery" required by the Rules may include sending the documents to the client, making them available for pick-up or allowing the client access to the documents at the lawyer's office.Before destroying any old client files, the lawyer should search out "original documents of the client" and offer to return the documents after explaining their significance (if necessary). This procedure will be more effective if implemented soon after the representation ends rather than years later. The lawyer should be mindful of the ongoing duty of confidentiality in deciding how to destroy old files. [Rule 1.16(e) now governs a lawyer's duty to provide files to a former client.]6/5/1997
1332

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12-Withdrawing Lawyers (Including Non-Compete Issues)

14-Ownership of Files and Attorney Lien Issues

This LEO answers numerous questions about a lawyer's withdrawal from a firm, including the following: (1) the ethics rules prohibit the remaining lawyers from contacting the withdrawing lawyer's clients without advising them of their right to select the lawyer of their choice, or even arranging to meet the clients as they pick up their files from the firm, if the purpose of the telephone call or meeting is to attempt to dissuade a client from hiring the withdrawing lawyer if the client has expressed an intent to do so; (2) the ethics code prohibits the remaining lawyers from contacting opposing counsel and advising them of the firm's continuing representation of a client when the client has already indicated an intent to retain the withdrawing lawyer; (3) a law firm may not condition release of a client's files upon the client's signing of a release; (4) retention of a client's papers may be unethical even if the client has not paid its bills (if retaining the files would be prejudicial to the client); (5) law firm may not deny the withdrawing lawyer access to files it if would harm the clients. [Rule 1.16(e) governs a lawyer's duty to provide files to a former client.]4/20/1990

Copyright 2000, Thomas E. Spahn