Inside Track: Letting Go: New Ethics Opinion Clarifies Rule on Surrendering the Client File:

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  • Letting Go: New Ethics Opinion Clarifies Rule on Surrendering the Client File

    Upon request, a lawyer should promptly surrender the file to a client or successor counsel upon termination of the representation. The lawyer may not retain the file to encourage payment of outstanding fees or costs, or charge the client for copying the file.

    Joe Forward

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    Jan. 18, 2017 – The rule may seem simple enough: upon request, a lawyer must surrender the client file to the client upon termination of the representation. Yet questions often arise about the scope of this duty. A new ethics opinion addresses those questions.

    The State Bar of Wisconsin’s Professional Ethics Committee recently issued Wisconsin Formal Ethics Opinion EF-16-03 (login required), which explains the materials that must be included in the client file upon surrender and whether the lawyer can retain the client file until the lawyer secures payment of fees, among other things.

    The opinion supersedes prior opinions on the same topic. State Bar Ethics Counsel Tim Pierce said the opinion is intended to help clarify the lawyer’s duty under Supreme Court Rule 20:1.16(d).

    Joe Forwardorg jforward wisbar Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by org jforward wisbar email or by phone at (608) 250-6161.

    SCR 20:1.16(d) states: “Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law.”

    “Questions about turning over the file to a client or successor counsel come up a lot,” said Pierce. “One reason is that SCR 20:1.16(d) does not provide much guidance, or even mention the word ‘file.’ Another reason is that, while there is no doubt that a lawyer has a duty to surrender the file, there is not much guidance in Wisconsin case law about precisely how that duty operates in practice.”

    The rule applies when representation ends. That includes termination upon the conclusion of a matter or in cases where a client has hired a new attorney. The lawyer’s duty with respect to the client file arises because the client’s file is the client’s property.

    What Must Be Included in the Client File?

    Wisconsin, like many jurisdictions, recognizes that the client’s file is the client’s property. “Although the duty to provide a former client with the file is rarely disputed, what materials must be included in the file has been the subject of debate,” the opinion says.

    So what must be included? The rule says lawyers must surrender “papers and property to which the client is entitled.” But what does that mean exactly? The rule does not say, and the Wisconsin Supreme Court has never defined “papers and property.”

    Ethics Opinion EF-16-03 provides guidance concerning the types of materials or information that normally comprise the client file. These materials must be provided to the client, unless prohibited by other law. They include:

    • Any materials that were provided to the lawyer by the client;

    • Legal documents filed with a tribunal or those completed, ready to be filed, but not yet filed;

    • Discovery, including interrogatories and their answers, deposition transcripts, expert witness reports, witness statements, and exhibits;

    • Orders and other records of a tribunal;

    • Executed instruments such as contracts, wills, trusts, corporate records, and similar records prepared for the client’s actual use;

    • Correspondence issued or received by the lawyer in connection with the representation of the client on relevant issues, including emails, texts, and other electronic correspondence that have been retained according to the firm’s document retention policy;

    • Legal opinions issued at the request of the client;

    • Third-party assessments, evaluations, investigative reports or records paid for by the client;

    • Legal research and drafts of documents that are relevant to the matter; and

    • Any materials for which the client has been billed, either directly or through lawyer or staff time.

    The ethics opinion notes that the above list is not exclusive. The items represent what commonly comprises the client file, but there may be other forms and types of material or information that must be provided to protect the interests of the client. “Lawyers should err on the side of providing the complete file,” the ethics opinion states.

    However, the ethics opinion also lists materials that may be withheld from the client. Those include:

    • Material that would violate a duty of nondisclosure to another person, such as when the lawyer uses the document of another client as a model;

    • Materials containing information, which, if released, could endanger the health, safety, or welfare of the client or others;

    • Materials that could be used to perpetrate a crime or fraud;

    • Materials containing only internal firm communications concerning the client file, such as conflicts checks, personnel assignments, and advice the lawyer receives concerning the lawyer’s own conduct, such as compliance with the Rules; and

    • Materials containing the lawyer’s assessment of the client, such as personal impressions and comments relating to the business of representing the client. If a lawyer’s notes contain both factual information and personal impressions, the notes may be redacted or summarized to protect the interests of both the lawyer and the client.

    Have an Ethics Question?

    Call the State Bar of Wisconsin’s Ethics Hotline at (608) 229-2017 or (800) 254-9154 to speak with an ethics counsel. Visit the ethics page (login required) for more information.

    Can I Hold the File Until I Get Paid?

    You do good work for a client and the representation ends. Now the real work begins: trying to collect the fee. If a client has not settled up and demands the client file, it may be tempting to say, “I’ll give you the file when you pay me for the work I did.”

    Can’t do it. “The duty to surrender the file is not conditional and the lawyer may not withhold the file upon termination in order to coerce a former client to pay fees or costs,” the opinion states. This so-called “retaining lien” has not been expressly recognized in Wisconsin, and at least one lawyer has been disciplined for imposing one.

    One more thing on this point: “Just as lawyers may not condition return of a file upon payment of fees, they may not place other conditions upon return of a file, such as demanding that a former client sign a release of liability,” the opinion states.

    Does a Law Firm have a Duty to Provide the Client File in Electronic Format?

    Yes, with exceptions. The opinion notes that lawyers have an obligation to provide the file in a format that is usable by the client. “If the lawyer keeps the file in electronic format, and the client or successor counsel request that it be provided in that format, the lawyer must comply,” the opinion states.

    In addition, the lawyer may also be required to convert a client file maintained in electronic format to hard copy if the client lacks the ability to access an electronic file, that is, “lacks the technological expertise or financial means to access digitized images.”

    But lawyers do not have an obligation “to convert a file from one format that is usable by the client to another simply for the convenience of the client or successor counsel.”

    The ethics opinion concludes that a lawyer is not required to provide both a hard copy and an electronic copy of the client’s file. 

    To avoid disputes, the opinion recommends that lawyers discuss the issue at the beginning of the representation and include language in engagement agreements that indicate the format that will be used to surrender client files upon termination.

    What if the Client Received All Client File Materials During the Representation?

    You already sent all client file materials to the client during the course of the representation. Are you still required to duplicate those copies at termination?

    Yes. “The provision of such materials during the course of a representation may be an effective way to communicate with the client, but does not fulfill a lawyer’s obligation to surrender the file upon termination of the representation,” the opinion notes.

    Two prior ethics opinions had concluded that a lawyer was not required to incur the additional expense of duplicating materials that the client already received.

    Ethics Opinion EF-16-03 notes that those prior opinions are no longer consistent with how the rule is interpreted and enforced in Wisconsin. The opinion notes that the client paid for the documents in the file, and the client may not have received or retained all documents.

    Can the Lawyer Charge the Client for Copying the File?

    No. The ethics opinion notes that lawyers are not required to retain a copy of a former client’s file, but may wish to do so as a matter of prudent risk management. The client owns the actual client file, so any copy would be for the lawyer’s benefit.

    “Because copying the file is for the lawyer’s benefit, a lawyer who chooses to retain copies of documents surrendered to a client may not charge the client for the duplication costs,” including any lawyer or staff time incurred in copying the material.

    What if the Successor Attorney Requests the Former Client’s File?

    The opinion notes that a lawyer who receives a request for the client’s file from a successor counsel “should ordinarily regard that request as the equivalent of a request from the client,” since the successor counsel is acting as agent for the former client.

    “There is no requirement in the Rules that lawyers obtain a written authorization from the client before surrendering the file to successor counsel, and to do so could be detrimental to the interests of a client when time is of the essence.”

    However, the ethics opinion notes that “there may be unusual circumstances where a client has specifically instructed a lawyer not to surrender a file to a successor counsel, and the lawyer must abide by those instructions.”

    Ethics Question?

    Call the State Bar of Wisconsin’s Ethics Hotline at (608) 229-2017 or (800) 254-9154 to speak with an ethics counsel. Visit the ethics page (login required) for more information.