What goes in them — and who owns them
By Sylvia E. Stevens
Although we have written on this subject in the past, issues relating to making files available to former clients continue to confound lawyers and are the subject of frequent inquiries here at 'ethics central.' Questions involve such things as who 'owns' the file, how much of it must be given to the client, whether the client can be charged for the file, and what constitutes 'the file.' Authorities are sparse and not entirely consistent.
The first place for Oregon lawyers to look for guidance is in the disciplinary rules. DR 2-110(A)(2) applies when a lawyer withdraws or the representation is terminated by the client. It requires that the lawyer take reasonable steps to avoid foreseeable prejudice to the client including 'delivering to the client all papers and property to which the client is entitled.' DR 9-101(B)(4) requires a lawyer to 'promptly … deliver to a client as requested by the client the … properties in the possession of the lawyer which the client is entitled to receive.' Neither rule tells us what the client is entitled to receive; for that we must look to other authority.
OSB Formal Op. No. 1991-125 is the best interpretation of these provisions that we have. The opinion begins with the statement that, except when there is a valid attorney lien, lawyers are obligated to turn over their 'entire client files' to their former clients. Cited in support of that proposition are In re Arbuckle, 308 Or 135 (1989), in which a lawyer refused to return a client’s military records, and In re Chandler, 306 Or 422 (1988), in which a lawyer failed to turn over his files pertaining to a client’s personal injury action.
There can be little doubt that a client is entitled to return of the client’s own documents that were provided to the lawyer (tax returns, medical records, diaries, etc.). Similarly, clients are clearly entitled to original documents prepared by the lawyer as part of the representation (contracts, deeds, etc.). What is less clear is whether 'attorney work product,' 'attorney notes,' and documents obtained through discovery are property to which the client is entitled.
In Oregon, ORCP36.B(3) defines 'work product' as a lawyer’s mental impressions, conclusions, opinions or legal theories concerning a litigation matter. United Pacific Ins. Co. v. Trachsel, 83 OrApp 401 (1987); see also FRCivP 26(b)(3). Except on a showing of undue hardship, the 'work product doctrine' or 'privilege,' as it is often called, protects the information from discovery by an opposing party in litigation.
As between the lawyer and the client, however, the majority of authorities hold that the work product privilege does not preclude disclosure to the client. See, e.g., Sage Realty Corp. v. Proskauer Rose Goetz & Mendlesohn, 91 NY2d 30 (1997) and authorities cited therein. Some courts base their decision on the premise that the work product privilege belongs to the client. See, Kallen v. Delug, 157 Cal.Rptr. 879 (1984). The Restatement (Third) of the Law Governing Lawyers provides at §58 that even without a request, a lawyer must promptly deliver to the client upon conclusion of the representation 'such originals and copies of other documents possessed by the lawyer relating to the representation as the …client needs' and that the client must be allowed 'to inspect and copy any documents possessed by the lawyer relating to the representation.' Another characterization is by analogy to 'work for hire.' In other words, the client paid the lawyer to form the mental impressions, conclusions, opinions and legal theories, and the client is entitled to take that information away at the end of the representation.
A few courts have reached a contrary conclusion. This minority view distinguishes between the 'end product' of the lawyer’s services, which belongs to the client, and the lawyer’s work product leading to the creation of those end products, which remains the property of the lawyer. End product includes such things as pleadings actually filed in court, correspondence, and other papers 'exposed to public light' by the lawyer in furtherance of the client’s interests, and final versions of contracts, wills, corporate records and similar documents prepared for the client’s actual use. The lawyer’s work product consists of all preliminary documents used by the lawyer to reach the end result, such as internal legal memoranda and preliminary drafts of pleadings and legal documents. Under this approach, a client is entitled to the lawyer’s work product only to the extent it is demonstrably necessary to the client’s understanding of the end product. See, e.g., Corrigan v. Armstrong, Teasdale, et al., 824 SW2nd 92 (Mo. Ct. App. 1992).
The majority position, as adopted in the Restatement (Third) of the Law Governing Lawyers, is the sounder view, in my opinion. Among the duties that lawyers have as fiduciaries to their clients are openness and conscientious disclosure; those duties are not advanced by allowing the lawyer to cull from the client’s file documents created in a fully compensated representation which the lawyer unilaterally decides the client should not see. Sage, supra at 37. The majority position is also consistent with the broad approach of Formal Op. No. 1991-125, which, although suggesting there may be some items in the file to which the client is not entitled, identifies only two types: memoranda or other documents prepared for another client that were referred to in the instant matter, and documents that pertain primarily to the lawyer-client relationship rather than to the substance of the client’s matter. The opinion concludes with the exhortation that 'unless there is a strong reason for not producing or providing documents, all documents that the client may want and that may be of assistance to the client must be provided.'
A conclusion that the client has a right to documents in the file does not mean that the lawyer must provide them at the lawyer’s expense. Ethics authorities, including Formal Op. No. 1991-125, are in unanimous agreement that the client may be charged for the assembly and copying of most documents pursuant to the terms of the fee agreement or to the firm’s customary charge for such services. The exceptions are original client documents given by the client to the lawyer and original documents created for the client by the lawyer. If the lawyer wishes to retain copies of those items, the lawyer must do so at the lawyer’s expense. Moreover, if the fee agreement entitles the client to copies of documents without charge, the lawyer must provide the former client, at no charge, with copies of all documents not previously provided. In this latter circumstance, the client can be charged for additional copies of documents already provided. The reasonable cost of staff time to locate and copy the file may also be charged to the client, consistent with the fee agreement or the firm’s customary charges.
Charging clients for the file may be practically impossible for lawyers who represent indigent clients. Nevertheless, the client’s inability to pay does not relieve the lawyer from the obligation to make the file available to the client. Similarly, the difficulty to the lawyer of retrieving and copying a former client’s file does not excuse the obligation to do so promptly at the client’s request.
One final issue that crops up increasingly is whether the client’s file includes electronic documents, i.e., computer files. None of the authorities that discuss the client’s right to the file distinguishes between hard copies and electronic documents and there does not appear to be any compelling reason to do so. An electronic draft of a document is as much a draft as one that has been printed out, and e-mails are merely another form of correspondence. If the client is entitled to copies of all documents, end product as well as work product, as is the majority approach, then the client is entitled to copies of the electronic documents as well as the hard copies.
As indicated at the beginning of this article, the legal authorities on the issue of a client’s right to the contents of the lawyer’s file are relatively few and they do not offer a consistent approach. Reasonable minds can certainly differ on the point at which a lawyer’s work and work papers become the client’s property. While OSB Formal Op. No. 1991-125 is not binding authority on the question, it certainly reflects a considered opinion on the breadth of a client’s right to the contents of the file. Prudence suggests that lawyers use it as their guide until such time as the Supreme Court indicates otherwise.
Sylvia Stevens is assistant general counsel of the Oregon State Bar. She can be reached at (503) 620-0222, ext. 359, or toll-free in Oregon at (800) 452-8260, ext. 359, and by e-mail at firstname.lastname@example.org.