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

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.

Copyright 2000, Thomas E. Spahn