Question

A current client has asked me to give her a complete copy of her file. Do I have to provide that to the client?

Answer

Provisions in SCR 20:1.16 describe the duties of a lawyer to provide copies of the client file to a former client at the time of termination of the representation. In fact, authorities are very clear that the lawyer has an absolute obligation to provide a copy of the file to the client when representation ends. The lawyer may keep a copy of the file but the copying costs are the lawyer’s responsibility. The Committee on Professional Ethics has issued a comprehensive ethics opinion on this topic that should be referred to when dealing with client file questions involving a former client. [See “Ethics Opinion EF-16-03: The Ethical Obligation of the Lawyer to Surrender the File Upon Termination of the Representation” (opinion issued 12/29/16) at page 43.]

Questions regarding a lawyer’s duties relating to current clients are a little different.

No rule states specifically that the lawyer must turn over a file to a current client during the representation. There are, however, clear rules that address the duty of a lawyer to communicate with a client during the representation.

SCR 20:1.4(a) places a very specific obligation on a lawyer to communicate with a current client during the representation. SCR 20:1.4(a)(3) provides that a lawyer shall “keep the client reasonably informed about the status of the matter.” SCR 20:1.4(a)(4) requires a lawyer to “promptly comply with reasonable requests by the client for information.” One can easily read from these black-letter rules that a lawyer should provide a copy of the client file to the current client when requested. For example, a client may wish to have the matter reviewed by another lawyer, which certainly is the client’s right. A lawyer’s decision to refuse to provide a copy of the client file may be the first step in the process of losing the client.

Whether the lawyer can charge for the cost of copying the file for a current client who is requesting a copy depends on several considerations. First, many lawyers today do not charge copying costs and indicate that in their engagement letter or retainer agreement. The lawyer would be hard-pressed to charge the client for copying the file at the client’s request if the engagement letter says that the lawyer or the firm will not charge copying costs.

Other lawyers indicate in their engagement letter or retainer agreement that they will provide copies of all relevant documents created or generated during the representation. This may allow the lawyer to argue that he or she has already provided the important documents related to the representation and therefore the client who requests another copy of the file should be charged for copying costs.

Business considerations may be more important than ethical duties when deciding whether to charge a client for copying documents and materials that the client has paid for as part of the fees paid to the lawyer.

Again, business considerations may be more important than ethical duties when deciding whether to charge a client for copying documents and materials that the client has paid for as part of the fees paid to the lawyer. Also, a client might ask for the entire file in a situation in which not everything in the file has already been sent to the client. Each instance must be assessed on the basis of both business considerations and ethical duties.

The lawyer’s duty to communicate with the client as identified in SCR 20:1.4 is a very specific and important ethical duty. The language of SCR 20:1.4 is mandatory although subject to interpretation as to what constitutes keeping a client reasonably informed or responding to reasonable requests by the client. Communication with a client is often stated as the most common reason for grievances being filed with the Office of Lawyer Regulation, although violations of SCR 20:1.4 are not as common as other types of actions that generate Wisconsin Supreme Court sanctions. Being sensitive to the duty to communicate with each current client is very important for lawyers to maintain good client relations and avoid grievances.