‘The File’ – Determining What to Give to the Client

Remember this from law school? When the file is requested by the client, you must hand it over. American Bar Association Model Rule 1.16(d) says that when your representation is terminated, the attorney shall “surrender papers and property to which the client is entitled.” That is the essence of turning over the file. Yet, it’s not very descriptive.

What If the Law Office Is Paperless?

If there’s no physical file to hand over, does that absolve lawyers from this responsibility? No. The good news here, though, is that turning over the file to clients when it is electronic can generally be done through your chosen document sharing method.

What Documents Should Be Given to the Client?

Since the documents that are included in the file may vary from law office to law office, at least to some degree, it’s important to know how to determine which documents should be given to the client. There are no clear-cut rules that apply nationwide to lawyers and the file. Yet, there are some important factors that you should consider because they will help you determine what you should hand over.

Consider state rules. First, turn to the state rules and case law. You can find valuable guidance for your jurisdiction.

What’s the status of the case? The status of the case is important. If the file has notes, research, and drafts for a complaint or other legal document that you’ve not filed yet, that information may be necessary for the former client or their new lawyer to continue to protect their interest. Yet, if the matter itself concluded, those drafts and research notes may not be useful to the former client. So, think long and hard about whether what you have at this time is truly necessary for the former client to protect their interests.

Will the information released as part of the file impact a third-party? If it does, releasing that information could violate your duty of non-disclosure owed to a third-party. In this situation, you could likely have an applicable exception that enables you to hold onto that material.

Is it reasonable? Back to the American Bar Association Model Rule 1.16(d), lawyers must “take steps to the extent reasonably practicable to protect a client’s interests.” For instance, if the former client demanded every single text message, email, and other digital materials that weren’t stored on removable media or in a way that makes sharing it a real possibility, refusing them could be seen as reasonable.

Summary: It Is Your Ethical Duty to Turn Over the File

Although there’s no singular definition of what documents are included in the file, it’s your ethical duty to turn over the right documents and material. Remember to follow the guidelines above and review what you’ve stored regarding the matter. Finally, have a chat with the client to determine what they don’t need. This can be extremely helpful for both of you.

Are you facing an ethical violation? Schedule a consultation with Zavieh Law. Consultations are confidential.

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