Opinion 95-6
(April 1995)

The Inquirer is an attorney who leased office space to "Attorney A," but had no professional association with him. According to the Inquirer, Attorney A vacated the space, without any forwarding address, leaving active client files behind. The Inquirer has repeatedly attempted to return the client files to Attorney A, but has been unsuccessful because Attorney A has refused to return the Inquirer's telephone calls. The Inquirer has received a telephone call from the Disciplinary Board in which he was informed that Attorney A complained that the Inquirer was not releasing the client files to him. The Inquirer also has received telephone calls from people purporting to be new attorneys for Attorney A's clients and requesting that the Inquirer release the files to them.

The Inquirer asks whether he should turn the files over to the Disciplinary Board, turn the files over to the attorneys who have called him, or maintain the files in storage until Attorney A requests that they be delivered to him.

Applicable Rules

Rule 1.15-- Safekeeping of Property.

(b) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this Rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.

Further, the Comment reads, in part: "A lawyer should hold property of others with the care required of a professional fiduciary."

Rule 1.6-- Confidentiality of Information.

(a) 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 to carry out the representation....

Finally, the Preamble to the Rules notes that an attorney should "exemplify the legal profession's ideals of public service" and that an attorney should work to improve the "quality of service rendered by the legal profession."

Discussion

Although the Inquirer does not represent the clients whose files are at issue, Rule 1.15 of The Rules of Professional Conduct impose on a lawyer certain obligations with respect to a third person's property. See generally ABA/BNA, Lawyers' Manual On Professional Conduct, ยง71:901. Further, the Committee believes that the approach recommended in this Opinion is consistent with the admonishments regarding public service and quality of service contained in the Preamble to the Rules.

Rule 1.15 generally directs attorneys to notify and deliver to third persons funds "or other property" in the attorney's possession. Subpart (b) of Rule 1.15 specifically contemplates that the attorney's obligation to a third party's property may arise outside the course of a representation. Compare Rule l.15(a) and  l.l5(c) with 1.l5(b).

Because the question of whether the files are the property of the clients or Attorney A is a question of substantive law, the outcome of which may change depending on the dealings between Attorney A and his clients, the Committee cannot comment on that issue. We do note, however, that files are usually deemed to be the property of the client.

The Committee concluded that until such time as the Inquirer can make delivery of the files to the owners, the Inquirer has the obligation to care for the property as a "professional fiduciary." Comment, Rule 1.15. As such, the Inquirer should inspect the files to determine client names and addresses, contact the clients and notify them that the files have been abandoned by Attorney A and offer to deliver the files to the clients or their attorney upon receipt of an authorizing letter from the clients.

The Committee recognizes that the Inquirer's review of the files may raise a confidentiality concern. The Committee has concluded that a reasonable reading of Rule 1.6 suggests that disclosure to theInquirer tailored to protect client interests was impliedly authorized by the clients when they retained Attorney A.  The Inquirer, therefore, should review only as much of the file as is necessary to identiy the clients and their addresses.

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.