You’ve received a request for a former client’s file. While your first reaction may be a groan, we hope the tips in this week’s email provide guidance that can simplify the process. 

1. Who is making the request?
2. What is the status of the file?
3. How to assemble documents to satisfy the request?
4. What should I do to document the transmission of the file?

This four-step approach gives you the road map you need to respond to the client file request. 

1. First determine whether the person making the request has the authority to receive client information. While this may seem like an easy decision, determining whether the administrator, beneficiary, or excluded heir making a demand for a deceased client’s file has the authority to receive it can get hairy. Even if it’s another attorney purporting to represent the former client, it’s best to seek informed consent confirmed in writing by the former client to disclose all, or part, of the file. Confirm that whoever is asking for the file has the required authority to receive it. If you’re not sure, this is a good situation to take advantage of your complimentary ethics consult as an OBLIC-insured attorney.
2. Review the status or condition of the file. Has the client’s property such as original records already been returned? Is the file complete?

The file should include:

• Important emails and other correspondence;
• Fee agreement and engagement letter;
• Final documents such as executed contracts or settlement agreements; and
• Research memos or relevant work product.If original documents or property have been previously returned, note that in your response.

3. Once you have reviewed the file for its completeness, duplicate documents to satisfy the requester’s needs. This may vary based on the scope of the request, e.g., if the request is limited by the language of a subpoena, versus a general request for the complete file by the former client themselves. Consider what is reasonably important and necessary. For example, your handwritten notes may not be relevant or needed if you’re transferring the file because the former client wishes to pursue a modification of child custody, but they may be very relevant if they contain contemporaneous impressions of a deceased client’s wishes. Every situation is a little different, so if you need assistance evaluating your response to a request for a file, please contact OBLIC’s Loss Prevention Hotline.
4. Finally, create a record of the transmission of the file. A secure digital file transfer may automatically create a record, but it’s recommended that you save the record and ensure that it is stored with your copy of the file. If the file will be retrieved or delivered in person, have the courier obtain the recipient’s signature on a receipt. Documenting the timely transfer of the file in a format that the requester could access may be useful if there’s a future instance of misremembering or alleging lack of response.

Postscript: When considering what copies you should retain, consult your firm’s file retention policy. Read more on the elements of a record retention policy.

Related reading:
“What Do I Do with Closed Client Files?”
Ohio Ethics Guide: Client File Retention
Ohio Advisory Opinion 2019-6: Ethical Obligation to Deliver a Former Client’s File

Correction to January 23, 2025 OBLIC Alert Email and Clarification on the U.S. Supreme Court Stay of the CTA Injunction

Our January 23, 2025 email incorrectly stated that enforcement of the CTA will proceed due to the ruling in Texas Top Cop Shop. The email inadvertently omitted that a separate injunction in Smith v. U.S. Dept. of Treasury remained in effect. Please continue to review the FinCEN.gov website for updates on BOI Report Filing and the CTA. The following FinCEN Alert was posted on January 24, 2025: 

Ongoing Litigation – Texas Top Cop Shop, Inc., et al. v. McHenry, et al., No. 4:24-cv-00478 (E.D. Tex.) & Voluntary Submissions [Updated January 24, 2025]

In light of a recent federal court order, reporting companies are not currently required to file beneficial ownership information with FinCEN and are not subject to liability if they fail to do so while the order remains in force. However, reporting companies may continue to voluntarily submit beneficial ownership information reports.

On January 23, 2025, the Supreme Court granted the government’s motion to stay a nationwide injunction issued by a federal judge in Texas (Texas Top Cop Shop, Inc. v. McHenry—formerly, Texas Top Cop Shop v. Garland). As a separate nationwide order issued by a different federal judge in Texas (Smith v. U.S. Department of the Treasury) still remains in place, reporting companies are not currently required to file beneficial ownership information with FinCEN despite the Supreme Court’s action in Texas Top Cop Shop. Reporting companies also are not subject to liability if they fail to file this information while the Smith order remains in force. However, reporting companies may continue to voluntarily submit beneficial ownership information reports. [Emphasis added.]

Please continue to check the FinCEN website for the latest information on the Corporate Transparency Act.  

As always, please don’t hesitate contact us with questions or concerns.

This information is made available solely for loss prevention purposes, which may include claim prevention techniques designed to minimize the likelihood of incurring a claim for legal malpractice. This information does not establish, report, or create the standard of care for attorneys. The material is not a complete analysis of the topic and should not be construed as providing legal advice. Please conduct your own appropriate legal research in this area. If you have questions about this email’s content and are an OBLIC policyholder, please contact us using the information above.