WHO OWNS THE FILE?

December 8, 2011 § Leave a comment

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.”

WHEN IT COMES TIME TO BAIL OUT

July 28, 2011 § 5 Comments

Sometimes it happens that you find it necessary to withdraw from representing a client. Maybe an ethical dilemma has reared its head. Or perhaps you and your client have developed irreconcilable differences. Or it could be that your client has not met the terms of the employment contract as to cooperation or payment or in some other way.

Once you have entered an appearance in a case, you are in it until the court lets you out. You may not avoid responsibility simply by not participating further. So when the need arises, how can you make an effective exit?

Uniform Chancery Court Rule (UCCR) 1.08 provides: “When an attorney makes an appearance for any party in an action, the attorney will not be allowed to withdraw as counsel for the party except upon written motion and after reasonable notice to the client and opposing counsel.”

In other words, it’s not good enough to get an agreed order signed by counsel opposite and present it to the judge. Nor is it adequate to get your client to sign off on an order.

Here is what you have to do, step by step:

  1. File a motion to withdraw. Set out a general statement of your reason without compromising the interest of your client in the litigation.
  2. File the motion and send a copy of it with certificate of service to opposing counsel and the client.
  3. Notice the motion for hearing.
  4. If your client and opposing counsel will sign an agreed order allowing you to withdraw, present it to the court for entry.
  5. If either your client or opposing counsel, or both, object, hold a hearing and ask the court to rule on your motion.

Several caveats:

  • If the case is set for trial, most chancellors will allow you to withdraw only in the most urgent and exigent circumstances.
  • No chancellor will allow you to withdraw if to do so will seriously prejudice your client.
  • You may not withdraw in any probate matter unless there is an attorney who will substitute for you. UCCR 6.01 requires that the fiduciary retain an attorney, unless the fiduciary is a licensed attorney.
  • Be general in stating a reason. Okay: “The undersigned attorney and the plaintiff have differences of opinion about handling this case that can not be resolved.” Not okay: “My client has filed three bar complaints against me and has retained counsel to sue me for malpractice, and I have reason to believe he is concealing assets from the court.”
  • Don’t include any language in your order that absolves you of any responsibility for anything you did in the case, or approves everything you did; that’s overreaching. You may state that you are relieved of all further responsibility from and after the date of the order allowing withdrawal.
  • Many chancellors will not permit you to withdraw if the only basis is non-payment of fees. Their rationale is that you took on a professional duty to represent the client when you entered an appearance, and that duty is higher than your desire to be paid.

THERE ARE WORSE JOBS THAN BEING A LAWYER

January 14, 2011 § Leave a comment

CareerCast has rated 200 jobs for 2011, ranking them from best to worst.  You can read the complete ranking here, and their methodology is here.  The jobs are ranked and assigned an overall score using a combination of criteria, including salary, hiring outlook, stress, physical demands and work environment.

I’ve gone through the list and selected some jobs of interest to the legal profession, some directly law-related, and some purely for comparative purposes.  The number in parentheses before each job title is the job’s rank.  The number following each job title is the job’s stress factor, which I have included so that you can compare your profession’s to others.

The top three most desirable jobs are (1) Software Engineer 10.400, (2) Mathematician 12.780, and (3) Actuary 16.040.

The highest law-related job is (13) Paralegal 12.650.  Next comes Court Reporter at (31) 18.560. 

And another legal job does not show up until the 50’s, where Judge 21.390 pops up at (53). 

(82) Attorney 36.110 is the next and last job of the legal-judicial field. 

Some jobs rated above attorney are:

(10)  Dental Hygienist 12.070

(18)  Parole Officer 12.550

(32)  Chiropractor 13.580

(68) Clergy 21.26

Some jobs rated lower than Attorney are:

(83)  General Practitioner Physician 25.650

(92)  Psychiatrist 24.420

(94) Registered Nurse 30.140

(101)  Surgeon 16.32

(114) Senior Corporate Executive 47.4

(121) Commercial Airline Pilot 59.530

(140) Bartender 13.070

The worst three jobs are (198) Lumberjack 40.90, (199) Ironworker 31.270, and (200) Roustabout 26.430.

I did not find Chancery Clerk on the list.  Does that mean that that job is ranked lower than 200 (Roustabout)?

It was no surprise to me that the stress level for Attorney is as high as it is, even higher than a general practice physician.  But cleaning plaque from people’s gums and rooting around in their mouths is rated higher than any legal job?  Sheesh.

YET MORE ON MANDATORY PRO BONO

September 27, 2010 § 3 Comments

The only thing I am hearing on mandatory pro bono (MPB) from lawyers in east Mississippi is stony silence.  You would think that a measure with so many ramifications for lawyers, particularly small-town lawyers of which we have many, would provoke a major reaction.

Meanwhile, down the board, you will find an earlier post and some insightful comments from lawyers in other parts of the state on the subject, the latest from John Gillis in Water Valley, who makes some points that deserve your consideration. 

Although I think Mr. Gillis and others make some valid and even persuasive points, I do disagree with their argument that MPB constitutes a form of involuntary servitude.  In my opinion, that argument is is based on a business-model view of the legal profession, a view that is incomplete and incorrect.  The law is a profession and not a business.  Lawyers have a duty to the administration of justice. 

The Preamble to the Rules of Professional Conduct states:  “A lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.”  [Emphasis added]  It goes on to say:  “As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession … A lawyer should be mindful of deficiencies in the administration of justice and the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance.  Therefore all lawyers should devote professional time and resources and use civil influence to ensure equal access to our system of justice for all who, because of economic or social barriers, cannot afford or secure adequate legal counsel.”  [Emphasis added]     

Mr. Gillis is perhaps too young to remember the days when all lawyers were subject to that infamous telephone call from the Circuit Judge to come defend an indigent prisoner.  That practice persisted until counties began hiring public defenders to do the job.  Back then I did not know a single attorney who refused the judge on the ground that the requirement was a form of Marxism (as Mr. Gillis characterizes it).  Those of us who were fairly competent accepted the burden as an obligation of the profession, not always gladly I assure you, but always with the understanding that it was our professional responsibility. 

I also do not understand the significance of the point that no other state has MPB.  How does that matter?

As for the other arguments, I think they are sound and need to be considered.  I am not sold on the idea of MPB, although I do lean toward it as a solution to a major problem facing the courts and the bar. 

It does seem to me that two things are necessary before a final decision is made on MPB:  First, much more study needs to be done; and second, many more lawyers’ voices’ need to be heard.  The silence on the subject is baffling to me.

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