In your status as counsel to attorneys A and B, legal malpractice defendants (third party) in the matter of P v. D v. A. B and A & B now pending in the Federal Court; you have asked the Professional Guidance Committee for an opinion as to the ethical obligation of the A & B law firm to honor D's request that D's client files (otherwise unidentified) be returned to it. It is the Committee's understanding that these files are now in the possession of the A & B law firm, which was formerly counsel to D but has now been discharged.
Your specific concern is with the effect of Rule of Professional Conduct 1.16(d). This would appear to be an appropriate concern. Rule 1.16(d) provides:
Upon termination of representation, a lawyer shall take steps to the extent reasonably practical to protect the client's interest, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is enticed and refunding any advance payment of fee that has not been earned. A lawyer may retain papers relating to the client to the extent permitted by other law.
It is the opinion of the Committee that the law firm of A & B is obligated to return D's client files without qualification. While the Committee recognizes the possibility that in the particular circumstances you have recited, D's request may be, de facto, for discovery purposes; nevertheless, the Committee is of the opinion that the professional responsibility obligation of the law firm of A & B remains unaffected by these circumstances. The limited exception recognized by Rule 1.16(d) to the effect that The lawyer may retain papers relating to the client to the extent permitted by other law addresses, inter alia, the right of an attorney to retain client papers as security for an unpaid fee. As your inquiry is posited, we do not understand that to be an issue with respect to the relationship between the A & B law firm and D.
Accordingly, it is the opinion of the Committee that pursuant to Rule 1.16(d) of the Rules of Professional Conduct, the A & B law firm must honor the request of D for return of its client files.