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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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.]

Copyright 2000, Thomas E. Spahn