The practice of law presents situations that challenge even the most experienced attorneys. This Alert will discuss responding to a request for a client file.
The request for a client file may come during the representation when a client becomes disgruntled and terminates the representation, at the conclusion of the representation, or long after the file is closed. When a request for a client file is received, the best practice is to promptly deliver to the client all papers and property to which a client is entitled. Prof. Cond. R. 1.16(d) indicates that “client papers and property” may include correspondence, pleadings, deposition transcripts, exhibits, physical evidence, expert reports, and other items reasonably necessary to the client’s representation.
Ohio Board of Professional Conduct Opinion 2010-2 discussed whether the lawyer’s notes are considered client papers to which the current or former client is entitled. The Opinion stated that a lawyer’s decision to turn over the lawyer’s notes will require a determination whether the notes are reasonably necessary to the client’s representation. While 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, a lawyer’s notes regarding facts about the case may be reasonably necessary to a client’s representation.
Opinion 2010-2 also addressed a common misconception – asserting a lien over a client’s file. It noted that Prof. Cond. R.1.8(i)(1) is not justification for asserting a lien over a client’s file, as that applies only to acquiring “a lien authorized by law.” Citing Reid, Johnson, Downes, Andrachik & Webster v. Lansberry, 68 Ohio St.3d 570, 574-75 (1994), the Opinion noted that in Ohio there is no common law lien on a client’s file in a contingent fee case and, in Ohio, there is no statutory lien on client files.
The lawyer’s ethical obligation to deliver a former client’s file is clarified in Ohio Board of Professional Conduct Opinion 2019-6. The Opinion stated that a lawyer is not required by the Rules of Professional Conduct to maintain a former client’s file for any minimum period of time after termination of representation. It further noted that if a lawyer has maintained a former client’s file for a substantial period of time after termination of representation, the lawyer is required to promptly deliver the file upon the client’s request in the same manner it was maintained or in an accessible format if the file was stored digitally.
It is a good practice for law firms to have a written file retention policy for client files. OBLIC recommends that such policy require the return of the original file to the client at the conclusion of the representation. We also recommend that law firms scan and retain copies of documents that would be helpful to respond to future, potential malpractice claims or disciplinary grievances (such as attorney notes and the correspondence file). The law firm’s file retention policy should be communicated to the client in the initial fee agreement and engagement letter and in further noted in a file closing letter.
Following these simple steps will often help avoid future disputes with a former client. However, if the request for client file is made via subpoena, we suggest that you contact OBLIC immediately. With prior approval, OBLIC provides assistance to its insureds in responding to subpoenas, often diffusing a potential malpractice claim or disciplinary complaint.
If you receive a request for a client file, take these steps:
- Locate file and determine status of file
- Review file to decide what client is entitled to receive
- Prepare file to deliver to client
- Contact OBLIC for assistance
As always, at OBLIC we’re here to help you!
|Gretchen K. Mote, Esq.
Director of Loss Prevention
Ohio Bar Liability Insurance Co.
Direct: 614 572 0620