There are many issues in loss prevention in law firms and in law practice management. Those of us who write or consult in the area often find ourselves writing again on the same issue. Or, we’ll see a post by another in the field and it will generate an idea or a desire to add to that subject.
A January 2016 post by Megan Zavieh (Daily Dispatch) appearing in AttorneyatWork reminded me to address this very practical issue of what is “the file”. It is a common problem that is not always clear to lawyers. Perhaps it was easier when everything related to a client’s work was actually in a paper file folder. You picked it up and went through it.
The general rule remains that the file belongs to the client, but it was not always clear what that was. The American Bar Association (ABA) stepped over the issue in its opinions from 1977 (Informal Opinion 1376) until it issued ABA Formal Opinion 471 (7/1/2015); see at http://bit.ly/1fsDriP.
So, the ABA considers these items to belong to the client:
• all property of the client supplied by the client to the lawyer, including original documents supplied by the client;
• end product items (like – reports or discovery for which the client paid; pleadings and papers filed with tribunal);
• copies of contracts, wills, corporate documents, etc., prepared by the lawyer for the clients (and considered end product);
• orders or other records of a tribunal;
• correspondence received or issued on relevant issues, including e-mail and other electronic correspondence that has been retained under the firm’s document retention policy;
• discovery or evidentiary exhibits (like transcripts, statements, reports, etc.);
• legal opinions issued;
• third-party assessments, evaluations or records paid for by the client.
The ABA opinion considered these items not to belong to the client file:
• papers and property that the lawyer generated for the lawyer’s own purpose in working on the client’s matter (unless certain of those needed to protect the former client’s interests);
• administrative materials related to the representation (e.g., conflicts checks, client worthiness, time and expense records, personal notes, drafts, research, and internal memorandums);
• drafts or mark-ups (except as above);
• notes regarding an ethics consultation;
• documents that might reveal the confidences of another.
Other common exceptions in various jurisdictions from the client file that are to be returned seem to be:
• materials that would violate a duty of non-disclosure to another person;
• materials concerning the lawyer’s assessment of the client;
• materials of only internal firm communications or welfare of client or of others;
• materials to which an attorney’s lien may apply when not paid.
Of course, each jurisdiction will have unique interpretations and those rules that need to be consulted first, e.g., file may not be withheld until paid (W. Va. L.E.I. 89-02) and Attorney Retaining Liens for unpaid attorney fees and expenses extends the right to withhold work product prepared for litigation by or for the attorney (i.e., WV L.E.I. 92-02 noting that some jurisdictions allow only the withholding of opinion work product). Also, lawyers need to think about what is electronic and is required as a part of the modern “file” whether on the firm servers and hard drives or even on your personal device that you no doubt used while working on the file. See ABA Model Rule 1.0(n).
While we have more guidance, you must always look to the state at issue and actively research the opinions. You must act reasonably and under the basic guidance that you are to protect the client’s interests. A failure to do so could result in more than just a dispute with an ex-client.