Vol. 83, No. 8, August 2010
A client has decided that she no longer wants me to represent her. She has asked for a copy of her entire file. Am I required to give her my personal notes?
This question is often asked when a client has decided to discharge a lawyer. It is also often asked when a lawyer withdraws from representing a client for one of the reasons allowed under SCR 20:1.16(d). Most lawyers know that they are required to give the file to the client and should, for their own protection, retain a copy of the file. Normally, however, lawyers assume that the file is limited to documents, pleadings, or other information generated as part of the representation. Lawyers often believe that they are not required to give their personal notes to the client. Unfortunately, that is not how this question likely would be viewed by disciplinary authorities.
It is well understood that the file belongs to the client. The question often is more focused as to what exactly are the contents of the file. Ethics opinions generally have recognized that the lawyer’s notes must be given to clients (and a copy made by the lawyer at the lawyer’s expense) because the lawyer’s notes would be considered necessary for clients to continue their representation, either by themselves or with another attorney. A recent opinion from the Board of Commissioners on Grievances and Discipline of the Supreme Court of Ohio identified this issue and made several conclusions:
“The conundrum for a lawyer is determining what are the papers and property to which the client is entitled. The rule helpfully explains that papers and property may include correspondence, pleadings, deposition transcripts, exhibits, physical evidence, expert reports, and other items reasonably necessary to the client’s representation; but, the word ‘entitled’ is not explained. A lawyer must look to other applicable law and rules to determine to what papers and property the client is entitled.
“None of the above cited disciplinary cases provide guidance as to whether under the ethical rules a lawyer’s notes are part of the file to which a client is entitled upon request. Nor, has this Board advised upon the issue of turning over a lawyer’s notes to a client upon request.
Dean R. Dietrich, Marquette 1977, of Ruder Ware, Wausau, is chair of the State Bar Professional Ethics Committee.
“A past opinion of the Board advised as to a lawyer’s duty to deliver a former client’s case file to a former client upon request, but did not discuss a lawyer’s notes. In Op. 92-8, the Board, applying DR 2-100(A)(2) [the predecessor rule to Prof. Cond. Rule 1.16(d)] and DR 9-102(B)(4) [the predecessor rule to Prof. Cond. Rule 1.15(d)] advised that ‘[a]n attorney has an ethical duty to promptly deliver a former client’s case files to the former client upon request. Materials acquired or prepared for the purposes of representing the client and other materials that might prove beneficial to the client should be returned. These materials include, but are not limited to, all significant correspondence, investigatory documents and reports the client has paid for, filed or unfiled pleadings and briefs, and all materials supplied by the client.’ Ohio Sup. Ct., Bd. Comm’rs on Grievances & Discipline, Op. 92-8 (1998).
“Part of the difficulty in addressing ‘lawyer’s notes’ is that the category is broad and not precisely defined. A lawyer’s notes might comprise a range of information from thoughts, ideas, impressions, or questions of an attorney, to internal office management memoranda such as personnel assignments or conflicts of interest checks, to facts about a case.
“When a client makes a file request to a lawyer, the lawyer’s decision as to whether to relinquish the lawyer’s notes will require examination of the lawyer’s notes in the file to determine whether the notes are items reasonably necessary to the client’s representation pursuant to Prof. Cond. Rule 1.16(d). A lawyer’s notes to himself or herself regarding passing thoughts, ideas, impressions, or questions will probably not be items reasonably necessary to a client’s representation. Internal office management memoranda such as personnel assignments or conflicts of interest checks will probably not be items reasonably necessary to a client’s representation. But, a lawyer’s notes regarding facts about the case will most likely be an item reasonably necessary to a client’s representation and if so should be turned over to the client.”
The State Bar of Wisconsin Professional Ethics Committee has not issued a formal opinion on this topic. It does appear, however, that the rationale behind the opinion of the Board of Commissioners on Grievances and Discipline would also apply in the Wisconsin setting. There is significant focus on the right of the client to receive a full and complete copy of his or her file and that the file must be delivered timely to ensure that the client does not suffer any adverse ruling because the file is not available. The analysis is again whether the attorney’s notes are related to and necessary for the client to continue his or her representation. Included would be attorney’s notes regarding legal theories and strategies, reactions regarding opposing counsel or the opposing party, and other documentation created by the lawyer to document legal theories and analysis used in providing the representation. There is an argument that personal notes of the lawyer that may be derogatory to the client do not have to be provided to the departing client. Also, purely administrative notes and information in the file (such as information assigning a research project to an associate) would not be file documents that normally would be presented to the client or new counsel.
A lawyer’s notes generally would be considered part of the client’s file and must be given to the client when the file is requested. Lawyers may review their notes to determine if portions of their notes are unrelated to the representation; however, such review should be narrow in focus to avoid any grievance for failure to provide the client file.