Which papers do lawyers have to return to former clients? ABA ethics opinion addresses the issue

POSTED JUL 01, 2015 10:28 AM CDT

BY DAVID L. HUDSON JR.

Lawyers often must return papers and products to clients after the termination of the representation in order to protect clients’ interests, according to a recently released ethics opinion from the ABA Standing Committee on Ethics and Professional Responsibility. Formal Ethics Opinion 471 (PDF) analyzed these issues in the context of a lawyer who had represented a municipality for 10 years. But then the representation ended, and the municipality then requested that its former lawyer provide its new counsel with all files—open and closed.

The ethics opinion explained that lawyers’ responsibilities in these circumstances are governed by 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 ambiguity comes into play because the Model Rules do not define “the papers and property to which the client is entitled.” According to the opinion, most jurisdictions apply the “entire file” approach. This approach means that there is a presumption that lawyers return all papers in the file unless a specific exception applies.

Other jurisdictions apply the so-called “end-product” approach. Under this rule, lawyers must return all finished products in the file, such as pleadings and investigative reports, but often not things such as memoranda about conflicts of interest or ethics, drafts of legal instruments, and legal research memos.

The formal ethics opinion explained that lawyers certainly should return end-product materials, but “there may be circumstances in individual representations that require the lawyer to provide additional materials related to the representation.” The opinion elaborated that any materials that would likely harm the client’s interests if not provided must be returned to the client. The opinion also noted that if a filing deadline is imminent, a lawyer must return “the most recent draft and relevant supporting research” to the client.

ABA’s Formal Ethics Opinion