Ethics
Handling a File When a Client Discharges You
You should cooperate with a client who wants to discharge you
from continued representation in order to avoid a more significant
controversey that may result in attorney discipline.
By Dean R. Dietrich
Question
A current client is discharging me and wants his file immediately.
How do I respond, and does it make any difference if the matter is in
litigation?
Answer
Generally, it is recognized that the file and its contents maintained
by a lawyer belong to the client, and the lawyer may not withhold the
file contents to persuade the client to pay a bill for legal services
rendered. SCR
20:1.4 requires a lawyer to keep a client reasonably informed about
the status of a matter and promptly comply with reasonable requests for
information. Within this rule is a strong implication that the lawyer
must provide all copies of relevant correspondence, research documents,
and documentation to the client even if the client is proposing to
discontinue the attorney-client relationship. Some suggest that the
lawyer may withhold distributing the file to the client using the theory
that the file contents are the only documents the lawyer could possess
in the form of a "lawyer's lien" to force payment from the client.
Wisconsin lawyers should avoid this strategy since Wisconsin courts have
not acknowledged the existence of a lawyer lien right; however, an
argument could be made that such a lien right should exist.
Generally, a lawyer should produce copies of all documents that have
been generated as part of the client representation. It is not necessary
that the lawyer produce documents that have been previously sent to the
client as part of the representation; however, it is often more
practical to simply produce the entire file for the client. It is
strongly recommended that the attorney retain a copy of the file or at
least the correspondence portion in order to respond to any inquiries
regarding the scope and type of representation provided.
The lawyer is not obligated to produce or turn over personal notes of
research conducted on behalf of the client or notes of conversations
between the attorney and the client. The lawyer is obligated to provide
the final result of any legal research conducted for the client that
exists in the form of a memo or correspondence. It also may be necessary
to reproduce draft copies of written briefs if they contain legal
arguments that were not placed in the final draft but which could be
useful for other arguments on the client's behalf.
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This article is not a formal opinion of the Professional Ethics
Committee and is not to be relied upon as having been approved by the
committee. Attorneys with questions or professional ethics issues may
contact the Ethics Hotline at (800) 444-9404, ext. 6168; or (608)
250-6168 (all day Wednesday); and (608) 629-5721 on Monday, Tuesday,
Thursday, and Friday mornings. Send written requests for Professional
Ethics Committee opinions to the committee c/o Keith Kaap, State Bar of
Wisconsin, P.O. Box 7158, Madison, WI 53707-7158.
Professional Ethics Committee opinions may be found on WisBar.
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If the client is seeking to terminate the attorney-client
relationship while litigation is pending, the attorney must assess
whether the cessation of representation will adversely affect the client
in the pending litigation. While the termination of the attorney-client
relationship may be initiated by the client, it is still recommended
that the attorney comply with the requirements of SCR
20:1.16 and only proceed with the withdrawal of representation if
withdrawal can be accomplished without material adverse effect on the
client's interests. The comment to SCR
20:1.16 provides "even if the lawyer has been unfairly discharged by
the client, the lawyer must take all reasonable steps to mitigate the
consequences to the client." This again suggests that the lawyer must
make sure that harm will not result to the client even when the client
is seeking to discharge the lawyer from continued representation.
The comment to the rule also provides that "the lawyer may retain
papers as security for a fee only to the extent permitted by law." This
comment again suggests that a lawyer may retain papers in order to
obtain payment for legal services rendered; however, there are no
Wisconsin statutes or court rulings that authorize the retention of
legal papers - especially if it will cause adverse consequences to the
client.
Lawyers should cooperate with clients who seek to discharge them from
continued representation in order to avoid a more significant
controversy that may involve the Board of Attorneys Professional
Responsibility and other court proceedings.
Dean R. Dietrich, Marquette 1977, of
the Wausau firm of Ruder, Ware & Michler L.L.S.C., is a member of
the State Bar Professional Ethics Committee.
Wisconsin Lawyer
