Ethics Opinion 333
Surrendering Entire Client File Upon Termination of Representation
Upon the termination of representation, an attorney is required to surrender to a client, to the client’s legal representative, or to a successor in interest the entire "file" containing the papers and property to which the client is entitled. This includes copies of internal notes and memoranda reflecting the views, thoughts and strategies of the lawyer.
- Rule 1.8(i) (Imposing lien on attorney work product)
- Rule 1.16(d) (Surrendering files upon termination of representation)
A law firm previously represented a bank in a variety of matters. After the firm’s representation in those matters ended, the Federal Deposit Insurance Corporation ("FDIC") was appointed as receiver for the bank. The FDIC’s outside counsel has requested access to all of the firm’s files regarding the bank. The firm has provided access to all client files with the exception of a small folder containing individual attorney handwritten notes and several internal memoranda reflecting attorneys’ thoughts, impressions and strategy ideas. Outside counsel for the FDIC claims to be entitled to all of the bank’s files — including the firm’s opinion work product — by virtue of the FDIC’s statutory assumption of all rights, titles, powers and privileges of the insured depository institution. The FDIC’s counsel has never articulated why the particular material that the firm is withholding is necessary for its investigation of the bank’s failure. Instead, it argues simply that the FDIC, as the bank’s successor in interest, is entitled to these documents
D.C. Rule 1.16 provides that "[i]n connection with any termination of representation, a lawyer shall take timely steps to the extent reasonably practicable to protect a client’s interests, such as . . . surrendering papers and property to which the client is entitled . . . The lawyer may retain papers relating to the client to the extent permitted by Rule 1.8(i)." D.C. Rule 1.16(d). D.C. Rule 1.8(i) creates a narrow exception to the general rule that clients are entitled to their files by allowing a lawyer to secure unpaid fees or expenses by placing a lien "upon the lawyer’s own work product, and then only to the extent that the work product has not been paid for." D.C. Rule 1.8(i).1 The Comment to D.C. Rule 1.8 states, "if the client has paid for the work product, the client is entitled to receive it, even if the client has not previously seen or received a copy of the work product." D.C. Rule 1.8, Comment .
The Committee has recognized that the surrender of all files to the client at the termination of a representation is the general rule and that the work-product exception applicable to liens for unpaid fees or expenses should be construed narrowly. See D.C. Ethics Op. 250 (1994); D.C. Ethics Op. 230 (1992). Work product "immunity" is a doctrine of evidence law, which may shield attorney work product from discovery by opposing counsel; it does not shield that same attorney work product from the attorney’s own client.
Indeed, the Committee has explicitly recognized that the District of Columbia has rejected the "end-product" approach of some jurisdictions2 — where the client only owns the pleadings, contracts, and reports that reflect the final result of the attorney’s work — in favor of the majority, "entire file" approach, "which does not permit a lawyer to acquire a lien on any of the contents of the client file except that portion of work product within the file that has not been paid for." D.C. Ethics Op. 283 n.3 (1988); see also D.C. Ethics Op. 168 (1986) (for purposes of determining what needs to be turned over to a former client or substitute counsel, the "entire contents of a client’s file" includes "all notes, memoranda and correspondence constituting ’work product’”); Sage Realty Corp. v. Proskauer Rose Goetz & Mendelsohn LLP, 91 N.Y.2d 30, 34, 689 N.E.2d 879, 666 N.Y.S.2d 985 (N.Y. 1997).
D.C.’s approach has been embraced by the Restatement (Third) of The Law Governing Lawyers (2000), which states that, "On request, a lawyer must allow a client or former client to inspect and copy any document possessed by the lawyer relating to the representation, unless substantial grounds exist to refuse." Id. at § 46(2). An attorney must surrender all papers and property to which the client is entitled. This requires the attorney to consider carefully the contents of the "file," ensuring that it contains all material that the client or another attorney would reasonably need to take over the representation of the matter, material substantively related to the representation, and material reasonably necessary to protect or defend the client’s interests. An attorney would not be required to surrender material that relates solely to the prior management of the case (such as material concerning which of the firm’s lawyers were assigned particular research projects) or to matters that are completely unrelated to the substance of the representation.
For these reasons, at least so far as the D.C. Rules of Professional Conduct are concerned, nothing in the matter at hand would justify withholding the relevant file from counsel for the FDIC.3
Inquiry No: 05-10-05
Adopted: December 20, 2005
Published: December 2005
1. Although not relevant here, D.C. Rule 1.8(i) also provides that, even when payment has not been made, work product cannot be withheld (i) when the client has become unable to pay, or (ii) when withholding the lawyer’s work product would present a significant risk to the client of irreparable harm.
2. A minority of courts and state bar legal ethics authorities distinguish between the "end product" of an attorney’s services—e.g., filed pleadings, final versions of documents prepared for the client’s use, and correspondence with the client, opposing counsel and witnesses—and the attorney’s "work product" leading to the creation of those end product documents, which remains the property of the attorney (see, e.g., Federal Land Bank v. Federal Intermediate Credit Bank, 127 F.R.D. 473, aff’d in part and rev’d in part on other grounds, 128 F.R.D. 182 (S.D. Miss. 1989); Corrigan v. Armstrong, Teasdale, Schlafly, Davis & Dicus, 824 S.W.2d 92 (Mo. Ct. App.); Alabama State Bar, Formal Ethics Op. RO 86-02; Arizona State Bar Comm. on Rules of Prof’l Conduct, Op. No. 92-1; Illinois State Bar Assn., Op. No. 94-13; North Carolina State Bar Ethics Comm., RPC 178 (1994); Rhode Island Supreme Ct. Ethics Advisory Panel, Op. No. 92-88 (1993); Wisconsin Ethics Opinion E-82-7 (1998)).
3. This assumes, of course, that the FDIC, is, as a matter of federal law, in effect the "client" and is entitled to any property or files to which the bank would be entitled if it were still the firm’s client.