| LEO Num | Topics | Summary | Date |
1339
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| [WITHDRAWN 11/16/12] A lawyer must surrender an original Power of Attorney document to the client, but "should preserve a copy of the document in order to make it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 |
0374
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| [WITHDRAWN 11/18/21] As long as the client is not prejudiced or otherwise entitled to possession of the deposition transcript, a lawyer may retain a deposition transcript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 |
1571
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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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 |
487
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| ABA LEO 487 (6/18/19) (A successor lawyer replacing a contingent fee arrangement lawyer must advise the client of the former lawyer’s claim for fees against any recovery (under a quantum meruit standard, a termination amount specified in the previous contingent fee arrangement, or some other arrangement). Such a claim arises if a client fires the contingent fee lawyer without cause or the contingent lawyer justifiably withdraws. Those standards vary by state, but lawyers' justifiable withdrawal includes examples such as an “obligation to withdraw due to unforeseen conflict of interest . . . unanticipated costs and expenses of litigation . . . client refused to comply with discovery obligations.” The successor lawyer may include such an explanation of the predecessor lawyer's right to a fee in the new contingent fee arrangement or separately. Such successive representations do not implicate simultaneous representation provisions such as ABA Model Rule 1.5(e) fee division provision, including that Rule’s requirement that all counsel assume “joint responsibility” for the matter – which “entails financial and ethical responsibility for the representation as if the counsel were associated in a partnership." Although the client in this situation involving successive contingent fee representations “cannot be exposed to more than one contingent fee when switching attorneys,” ABA Model Rule 1.5(a) "supports the conclusion that client consent is required to divide the fee at the end of the case.” Thus “successor counsel may not disburse fees claimed by that [predecessor] counsel absent the client’s consent.” Successor counsel may or may not represent the client in dealing with predecessor counsel, which should be specified in the fee agreement. Among other things, successor counsel undertaking that task “cannot charge the client for work that only increases the successor counsel’s share of the contingent fee and does not increase the client’s recovery.” Given successor counsel’s interest “in a portion of the proceeds,” the arrangement must also include the client’s informed consent to that conflict. Both successor and predecessor counsel must protect client confidences, and predecessor counsel may not communicate directly with the former client “without successor counsel’s consent under Rule 4.2.” Successor counsel must hold in trust any disputed amounts. | 6/18/2019 |
1101
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| 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 |
1864
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| 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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| 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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| 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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| 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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| 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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| 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 |
ABA-482
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| Lawyers who face or whose clients face the consequences of large-scale disasters such as hurricanes, floods, fires, etc.: (1) must comply with their communication duties, and therefore should maintain contact information for their clients and consider providing their own contact information to those clients; (2) if they continue to represent clients in the affected area, may be able to provide services outside their normal expertise, should evaluate in advance ways to assure that they will have the necessary client files and legal resources, keep track of litigation deadlines, take steps in advance to access trust funds and deal with affected financial institutions holding client or their own funds; (3) may have to withdraw from representations if they are unable to competently represent clients; (4) if they either permanently or temporarily re-locate to other jurisdictions, must comply with the multijurisdictional rules, other statutes and regulations of those jurisdictions; (5) must notify clients of the loss of "documents with intrinsic value" (such as executed wills, etc.), as well as other client or lawyer files that the lawyer cannot reconstruct after reasonable attempts to do so (to avoid such problems, lawyers should maintain copies of important documents in an off-site location," should consider returning all original documents and documents with intrinsic value created by the lawyer as a result of the representation to clients at the end of representation" and should also consider "including in fee agreements or engagement letters the understandings between the lawyer and the client about how the lawyer will handle documents once the representation has ended"); and (6) must avoid improper solicitation or other advertising in the wake of such disasters (remembering that they may solicit pro bono representations because those are not motivated by pecuniary gain). Out-of-state lawyers affected assisting clients in such affected areas must comply with the pertinent jurisdictions' multijurisdictional rules and other regulations. | 9/19/2018 |
1503
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| 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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| 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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| 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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| 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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| 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 |