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Whose file is it anyway?

This may be a somewhat apocryphal story, but I’m sitting in my office, working very hard on something (surely) when I am alerted that an emergency is afoot. Upon inquiry, I discover that some attorney, somewhere, has a client at her:

  • doorstep;
  • lobby;
  • front stoop; and/or
  • holding on another telephone line

and, that client is demanding her file. What should the attorney do?

My first response is probably somewhere along the lines of why not give it to her? If she came in asking for something else that belonged to her, she would get it back, right? But that response would not address all of the underlying issues involved in the emergency — not the least of which is what happened to the attorney-client relationship to cause such disrepair that the client is now there demanding her file? Other more practical and immediate issues include, what parts of the file belong to whom and who pays for copies, has the employment or engagement actually ended and/or what else is the attorney supposed to do for the client and who pays for what, or did I mention money already? Someone who has a client in front of them demanding the return of their file pronto probably has something else going on that needs to be addressed, but one crisis at a time.

The Rule of Professional Conduct relating to return of files has been reworked over the years to try to make it more clear what has to be returned to the client: Rule 3-700(D) says that when the employment has ended and the client has requested it, all the client’s papers and property must be released. The rule specifies that client materials include correspondence, pleadings, deposition transcripts, exhibits, physical evidence, expert’s reports, "and other items reasonably necessary to the client’s representation, whether the client has paid for them or not."

What’s that mean? Well, first the attorney must determine whether the request is being made to elicit the status of the client’s matter, or rather, if the client is seeking a termination of the Client-Attorney relationship. If the client is just trying to find out what is going on in her case, then the attorney needs to promptly respond by providing copies of significant and pertinent documents (Rule 3-500).

In my next post, I’ll discuss what the attorney’s obligations are when the attorney’s employment is being terminated by the client ( I refrain from using "fired" in case Mr. Trump has obtained a copyright on that phrase).

Mara J. Mamet

mmamet@carnaclaw.com