Recent ABA Formal Ethics Opinion examines obligations of lawyers
in providing file documents to former clients after termination
Hello everyone and welcome to this Ethics Alert which will discuss recent American Bar Association Formal Ethics Opinion 471 which discusses the obligations of lawyers to return file/documents to former clients . The opinion is Formal Opinion 471 (Ethical Obligations of Lawyer to Surrender Papers and Property to which Former Client is Entitled) (July 1, 2015) and is online here:http://www.abajournal.com/files/aba_formal_opinion_471(7-1-15).pdf
The opinion begins with the premise that lawyers must often return documents and materials to a client after the termination of the representation in order to protect client’s interests. The opinion analyzed the following facts: a lawyer had represented a governmental municipality for 10 years. After the representation was terminated, the municipality requested that the lawyer provide its new counsel with all files, including both open and closed files.
The opinion further states that lawyers’ obligations and responsibilities are generally outlined in ABA Model Rules 1.15 and 1.16. Model Rule 1.15 provides that a lawyer must safeguard a client’s property and promptly return it to the client when requested. Model Rule 1.16(d) provides that lawyers take steps “reasonably practicable to protect a client’s interests.” These steps include “surrendering papers and property to which the client is entitled.” The Model Rules do not define what “papers and property to which the client is entitled.”
According to the opinion, most jurisdictions apply the “entire file” approach, wherein there is a presumption that lawyers must return all papers in the file unless a specific exception applies. “In those jurisdictions, at the termination of a representation, a lawyer must surrender papers and property related to the representation in the lawyer’s possession unless the lawyer establishes that a specific exception applies and that certain papers or property may be properly withheld. Commonly recognized exceptions to surrender include: materials that would violate a duty of non-disclosure to another person; materials containing a lawyer’s assessment of the client; materials containing information, which, if released, could endanger the health, safety, or welfare of the client or others;16 and documents reflecting only internal firm communications and assignments. The entire file approach assumes that the client has an expansive general right to materials related to the representation and retains that right when the representation ends.”
Other jurisdictions use the “end product” approach. Under this approach, lawyers must provide all finished products in the file, such as pleadings and expert and investigative reports, but not work product, such as memoranda about conflicts of interest or ethics, drafts of legal instruments, and legal research and memoranda. According to the opinion, “(a)dministrative materials related to the representation, such as memoranda concerning potential conflicts of interest, the client’s creditworthiness, time and expense records, or personnel matters, are not considered materials to which the client is entitled under the end product approach. Additionally, the lawyer’s personal notes, drafts of legal instruments or documents to be filed with a tribunal, other internal memoranda, and legal research are viewed as generated primarily for the lawyer’s own purpose in working on a client’s matter, and, therefore, need not be surrendered to the client under the end product approach.” Florida follows this approach.
The opinion states that lawyers should always return end product materials; however, “there may be circumstances in individual representations that require the lawyer to provide additional materials related to the representation.” Also, any documents and/or materials which would likely prejudice the client’s interests if they are not provided must be returned to the client. The opinion also noted that if a filing deadline is imminent, a lawyer must timely provide “the most recent draft and relevant supporting research” to avoid causing prejudice to the client.
Bottom line: this opinion provides important guidance from the ABA regarding a lawyer’s duties and obligations when providing file documents and/or materials to a client after the representation is terminated. Of course, lawyers must determine which rule their jurisdiction applies before acting.
Be careful out there.
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