Oregon State Bar Bulletin — JANUARY 2006

Bar Counsel
More light on a topic that won’t go away

You might call this column, "The Revenge of the Return of the Client File."

A previous bar counsel column covered this topic comprehensively and is widely read and distributed among the Oregon State inmate population. See, Stevens, "Client Files, Revisited," OSB Bar Bulletin, January 2003. Even so, General Counsel’s Office and the Client Assistance Office receive frequent inquiries on the subject. Questions and confusion continue.

Ordinarily, a lawyer will keep the client apprised of developments in the case by providing the client with copies of correspondence and pleadings sent and received. The lawyer may also provide the client with copies of documents received in discovery or otherwise obtained from third parties during the representation. In a perfect world, at the conclusion of a matter, the client would have a "mirror image" of the lawyer’s file. Unfortunately, we don’t live in a perfect world and it is common for clients to ask for a copy of the entire file at the conclusion of the representation.

Oregon RPC 1.16(d) requires a lawyer to surrender "papers and property to which the client is entitled" upon termination of representation.1 Oregon RPC 1.15-1(d) requires a lawyer to "promptly deliver to the client … property that the client … is entitled to receive…." Citing In re Arbuckle, 308 Or 135 (1989) and In re Chandler, 306 Or 422, 760 P2d 243 (1988), former OSB Formal Op. No. 1991-125 made clear that client property included the client’s entire file. However, until September 2005, Oregon lacked any legal ethics authority that clearly defined what constituted the entire client file. Thus, questions have focused on whether the lawyer has to turn over work product, lawyer notes and documents obtained through discovery, and who has to pay for the copying costs if the lawyer wants to retain a copy for her own files or if the client asks for a second or third copy.

In September 2005, the Board of Governors approved the issuance of revised OSB Formal Ethics Opinions that replace the 1991-2004 opinions. By and large, the 2005 opinions are essentially identical to their predecessor counterparts, except with citations and references to the Oregon Rules of Professional Conduct that became effective Jan.1, 2005. OSB Formal Ethics Op. No. 2005-125, which replaces former OSB Formal Op. No. 1991-125, includes some important additions that now address the legal ethics questions that were formerly left unanswered by the prior opinion.

"By entire file, we mean papers and property that the client provided to the lawyer; litigation materials, including pleadings, memoranda, and discovery materials; all correspondence; all items that the lawyer has obtained from others, including expert opinions, medical or business records, and witness statements. The client file also includes the lawyer’s notes or internal memoranda that may constitute "attorney work-product." OSB Formal Ethics Op. No. 2005-125, citing Minnesota Ethics Opinion 13 (1989).

The opinion has expanded the list of materials to which a client is not entitled to three: 1) memoranda or other documents prepared for a second client that were included in the first client’s file; 2) notes or documents that do not pertain to the merits of the client’s matter but to the lawyer-client relationship and 3) documents or information that the lawyer is prohibited from delivering to the client by reason of law or court order. This third and new exception acknowledges the increasing body of law that acts to protect confidential or sensitive information from distribution to third parties who may misuse the information.

OSB Formal Ethics Op. No. 2005-125 also clarifies who pays for copying the file. First, it makes clear that a lawyer has the right to retain a copy of the client file. Lawyers are encouraged to retain copies of client files in the event a question arises later about the lawyer’s representation of the client. (The PLF’s recommendations for file retention periods can be found at www.osbplf.org.) If the lawyer does so, however, the lawyer must bear the expense for copying any original documents given by the client to the lawyer and any original documents prepared by the lawyer for the client. For other documents, the question of who pays depends on the fee agreement. If the fee agreement requires the client to pay copying costs, then the lawyer may charge the client to copy the remaining documents. If the agreement provides that the client gets copies without separate charge, the new opinion clarifies that the lawyer must provide one copy without charge.

The third and final change in OSB Formal Ethics Op. No. 2005-125 concerns charging for personnel costs for locating and segregating files. While a lawyer may not charge clients for culling materials from the file that the lawyer does not want to provide the client, "a lawyer may charge clients for the personnel costs of segregating materials that the lawyer is legally prohibited from producing, or if the client has requested only certain portions of the file." Id. Again, the fee agreement will govern whether the lawyer may charge labor costs for production of the first copy of the file.

Regardless of the terms of the fee agreement, once a lawyer provides the client with one copy of the entire file (and returns any original client documents), the lawyer’s ethical obligations are satisfied. In other words, a lawyer is not ethically required to make multiple copies of a file for the client. To the extent the lawyer chooses to honor requests for duplicate copies, the lawyer may charge the client both copying costs and the labor costs of locating, segregating materials and copying. In order to ensure the right to charge for multiple copies, it behooves the lawyer to keep a record of what documents were provided to the client and when.

With its laundry list of file materials that are considered client property, OSB Formal Op.No. 2005-125 should make it easier for lawyers to determine what materials belong to the client and who should pay for the costs associated with providing the client those materials. In any event, the lawyer’s ethical duty ends with the provision of one copy of the entire file.

1. Oregon RPC 1.16(d) also permits a lawyer to "retain papers, personal property and money of the client to the extent permitted by other law." ORS 86.470 grants lawyers a possessory lien on client files to secure payment of outstanding fees. Whether that lien right is absolute is the subject of some debate, notwithstanding the language of OSB Formal Ethics Op. No. 2005-90. We anticipate providing clarification of that issue in a subsequent column.

© 2006 Helen Hierschbiel

Helen Hierschbiel is assistant general counsel in the OSB Client Assistance Office. She can be reached at (503) 620-0222, or toll-free in Oregon at (800) 452-8260, ext. 361, or by e-mail at hhierschbiel@osbar.org.

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