The Better Chancery Practice Blog

In the past few months, on two separate occasions, I have heard a witness say that he or she did not have certain documents because “my previous lawyer has them, and won’t give them to me until I pay my bill.”

When I was in practice I heard the same thing from time to time in various forms.

Now, I have no way to know whether what those statements were true, or whether they were based on a misunderstanding.

But the fact is that it is a long-standing ethical rule in Mississippi that the client has a right of access to the file file in the attorney’s office, regardless whether the client has any unpaid balance of fees or expenses.

Ethics Opinion 144, issued March 11, 1988, includes the following language:

This committee concludes that M.R.P.C. 1.16 modified the prior ethical rules of the Mississippi Bar Association only to the extent that the prior opinions required the unconditional delivery of the file by the lawyer. The current Rule only requires that the lawyer surrender papers and property to which the client is entitled. The Rule recognizes the lawyer’s right to retain papers to the extent permitted by law. Thus, the issue is primarily a legal matter concerning the ownership of the items in the file and the legal enforceability of the attorney’s lien. However, the ethical issue which the lawyer must weigh in the balance with his legal rights is at what point will the enforcement of his legal right breach his ethical duty under 1.16(d) to “take steps to the extent reasonably practicable to protect a client’s interest.” Each case will turn on its own facts, and it is not possible to anticipate each situation. Generally, if retaining the client’s file prevents the client from obtaining another lawyer or from proceeding with his case in a timely manner, then the lawyer may have breached the ethical duty owed to the client.

The ownership of the specific items contained in a file is a matter of law. Informal Opinion ABA No. 790 (Oct. 26, 1964). The client’s file consists of the papers and property delivered by the client or which the client caused to be delivered to the lawyer. DR9-102(b) (4). In addition, the “end product”, or in other words, what the lawyer was hired to do, is usually also considered to belong to the client. Wisconsin Bar Bulletin, June 1970 Supplement (Memo Opinion 4-78). On the other hand, the notes and memorandums are usually considered to belong to the lawyer and be his work product. Missouri Bar Bulletin, May 1978, Informal Opinion (Jan. 6, 1978). Contrary opinions can be found which indicate the client has no absolute right to the files. Maryland Opinions Informal Opinion 76-50 (March 1, 1976). This committee concludes that the better-reasoned opinions generally recognize that to the extent the client has a right to his file, then his file consists of the papers and property delivered by him to the lawyer, the pleadings or other end product developed by the lawyer, the correspondence engaged in by the lawyer for the benefit of the client, and the investigative reports which have been paid for by the client. San Diego Bar Association, 25 Dicta, May 1978 (Opinion 1977-3). However, the lawyer’s work product is generally not considered the property of the client, and the lawyer has no ethical obligation to deliver his work product. [Emphasis added]

That language arises out of professional rules that preceded the current ones, and are no longer in effect. Nontheless, I think the rationale is sound, and the opinion is still on the state bar’s website among the many other ethics opinions.

The kicker in the language above is the phrase ” … which have been paid for by the client” at the end of the italicized language. The problem usually arises when the lawyer wants to keep all those items until they have been “paid for by the client.”

You should read the entire opinion and draw your own conclusions, but I think that a fair reading is that the client is entitled to all documents he or she delivered to you and all end products, and you are entitled to keep all of your own notes, research and paperwork you generated. The client’s entitlement to the file documents should not be based on payment or non-payment, but rather on the prejudice that might result to the former client in the aftermath. For many years before EO 144, the inflexibile rule in Mississippi was that the lawyer had no right to deprive the client of the file due to non-payment.

May you charge the client to copy the file before you let it go? Ethics Opinion 105, issued September 9, 1985, includes this language: “… in the absence of controlling language in any applicable employment agreement, a lawyer discharged by his client in a pending matter may ethically charge his client for the actual cost of duplicating the client’s file but that the lawyer may not ethically condition release of the duplicate file on the prior payment of the copying costs. Because there is no apparent potential for prejudice to the client where the subject of the representation is concluded, the Committee concludes that after the conclusion of a matter the lawyer may charge a client for the actual copying costs for duplicating a file and condition the release of the duplicate file on the prior payment of the copying costs.”

Tagged: attorneys, client files