Opinion 93-22
(April 1994)

You have asked for this Committee's Opinion as to whether you are obligated to respond to a request from another attorney to provide a complete copy of a file pertaining to a personal injury matter you concluded on behalf of a client.

Generally, the Rules of Professional Conduct impose no such obligation. Subsection (a) of Rule 1.6 "Confidentiality of Information" states:

A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order the carry out the representation, and except as stated in paragraphs (b) and (c).

Rule 1.6(d) makes it clear that the duty expressed in Rule 1.6(a) "continues after the client-lawyer relationship has terminated."

In this instance, however, the Committee is given to understand that the attorney seeking a copy of your file represents the client in question. Accordingly, the request is tantamount to a request from your client for a copy of his own file. Rule 1.16 ("Declining or Terminating Representation") addresses this situation in subsection (d):

Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a 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 entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law (emphasis supplied).

Because the matter in which you represented this client has concluded and you apparently do not continue to represent that client in this or any other matter, it is the Committee's opinion that you are obligated to provide a copy of your file to the extent it consists of "papers and property to which the client is entitled." Although you indicate that there "are no documents in the file that were given to me by my client," the Committee cautions against concluding that this is dispositive as to what your client might be entitled. While Rule 1.16(d) and the comments thereto do not further define the notion of "papers and property" to which a client might be entitled, the ABA Committee on Ethics and Professional Responsibility, in Informal Opinion 1376 (1977), noted that:

The attorney must return all of the materials supplied by the client to the attorney....

On the other hand, in the Committee's [the ABA Committee] view, the lawyer need not deliver his internal notes and memos which have been generated primarily for his own purposes in working on the client's problem.

Between these extremes are the items about which you may be uncertain. In the Committee's view, upon request by the client you should deliver all other material which is useful to the client in benefiting fully from services he has purchased from you....

It must be kept in mind that the Committee cannot answer questions of law. In the gray areas, what is the lawyer's property and what is the client's property in a particular case are questions of law governed by the law of the applicable jurisdiction. The ethical principles involved are simple. The client is entitled to receive what he has paid for and to the return of what he has delivered to the lawyer. Beyond that, the conscientious lawyer should not withhold from the client any items which it could reasonably be anticipated would be useful to the client.1

American Bar Association Committee on Ethics and Professional Responsibility. Informal Opinion 1376
(1977).

Our Committee has also addressed this issue, albeit in very general terms, in Professional Guidance Opinion 87-1:

It is difficult, if not impossible, to state precisely which files must be turned over -correspondence, pleadings, attorney's notes and investigation, research memos, etc. As to this issue as well sound judgment must be exercised based on the particular facts and circumstances of each case2.

Philadelphia Bar Association Professional Guidance Committee Opinion 87-1
. n4.

On balance, it is the Committee's view that in the interest of complying with Rule 1.16(d), any doubt in your mind about whether materials in your client's file are subject to the Rules should be resolved in favor of relinquishment.


You have also inquired as to whether you may charge for the cost of retrieving and reproducing your file. Although it would not be inappropriate for you to request reimbursement for reasonable copying costs incurred in connection with returning your client's property and papers as required by Rule 1.16(d), the Committee believes you should not condition their return on payment of those costs. See Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility Opinion No. 89-75.

While Rule 1.16(d) refers to the potential entitlement of a lawyer to retain client papers "to the extent permitted by other law," this is generally a reference to those situations where the lawyer has not received his full measure of compensation for the services performed. It does not appear from your inquiry that any such situation exists herein and, accordingly, your obligation to turn over your client's file remains unaffected.

The Committee also wishes to indicate that you may want to seek an express authorization from your former client prior to turning over the requisite file documents in order that you may comply fully with all other provisions of the Rules of Professional Conduct.

The several bar committee opinions discussed above are enclosed for your further guidance.

Notes

  1. Informal opinion Number 1376 was rendered prior to the promulgation of the Model Rules of Professional Conduct which are the source for Pennsylvania's Rules. Nevertheless, the Committee believes the above language is applicable to your inquiry.

  2. Opinion 87-1 addressed Disciplinary Rule 2-110(a) of the former Code of Professional Responsibility which obligated a withdrawing attorney to take "reasonable steps to avoid foreseeable prejudice to the rights of his client" including "... delivering to the client all papers and property to which the client is entitled. This is the rough equivalent of Rule l.16(d)'s requirement that a lawyer whose representation has been terminated must "take steps to the extent reasonably practicable to protect the client's interest. .."

     

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.