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Vol. 72, No. 6, June 1999 |
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.
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.
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