Lawyer’s ethical obligations in surrendering client papers and property after termination
In July 2015, the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 471 which addresses the lawyer’s ethical obligations to surrender papers and property to which the former client is entitled after termination of the representation. The opinion provides a good
ABA Model Rule 1.16, Declining or Terminating RepresentationABA Model Rule 1.16, Declining or Terminating Representation is substantially similar to Florida Bar Rule 4-1.16 and requires lawyers to surrender "papers and property to which the client is entitled." Neither the Model Rule of the Florida Rule provides a definition of these terms.
The opinionThe opinion discusses the approaches taken in various jurisdictions and notes that the majority use the "entire file" analysis, wherein clients are entitled to receive all items in the file unless the lawyer can show that the item would fall under one of the generally accepted exceptions:
...Commonly recognized exceptions to surrender include: materials that would violate a duty of nondisclosure to another person; materials containing a lawyer's assessment of the client; materials containing information which, if released, could endanger the health, safety or welfare of the client or others; and documents reflecting only internal firm communications and assignments.
Other jurisdictions follow the "end product" analysis. Under this analysis, clients are entitled only to those items that are the end product of the representation, and may not be entitled to receive the documents or other materials that led up to the end product.
...Under these variations of the end product approach, the lawyer must surrender: correspondence by the lawyer for the benefit of the client; investigative reports and other discovery for which the client has paid; and pleadings and other papers filed with a tribunal. The client is also entitled to copies of contracts, wills, corporate records and other similar documents prepared by the lawyer for the client. These items are generally considered the lawyer's "end product."
Under this analysis, administrative documents, internal memoranda and preliminary drafts of documents do not have to be returned; however, internal notes and memos may need to be turned over if the final product of the representation has not yet emerged and nondisclosure could harm the client.
Florida lawyersIn Florida, the client file is the property of the lawyer. The lawyer may assert a retaining lien on the client file after the representation is terminated; however, Florida Bar Rule 4-1.16(d) states that, upon termination, the lawyer must surrender papers and property to which the client is entitled, take all steps to mitigate the consequences of the termination to the client, and "may retain papers and other property as security only to the extent permitted by law." The lawyer must return documents which have legal significance in their original form, such as wills, trusts, stocks, bonds, and property deeds.
ConclusionLawyers should be aware of these requirements before asserting a retaining lien on a client's file after termination of the representation.