In my last post, I discussed the obligations of an attorney to respond to a client’s request for a status update, rather than when terminating the relationship. Here, I discuss the client’s rights to her file upon ending the attorney-client relationship.
If a client asks for her file, it is not enough to hand it over like a library book and think the matter is concluded. An attorney has a duty to avoid foreseeable prejudice to her client. It’s also not enough for the attorney to think once the client reads the file she’ll figure out what to do next and by when it needs to be done.
Even if the attorney is fired and the client does want her file, not everything in that file belongs to the client. A few examples of file materials that don’t have to be provided are the attorney’s work product, her impressions about the case, or some fantastic and unique form that she created to make her professional life better. The attorney might have to extract the information from the form and include it some other way. There also may be confidential records that the attorney cannot turn over.
Can the attorney make copies of the client file? Yes. Can she require the client pay for the copies? Yes – if it’s in the signed contract. What if the client has agreed to pay for all copying costs but hasn’t yet – can the attorney hold on to the file until reimbursed? This if often a problem area; the general answer is no, attorneys aren’t mechanics; they can’t put a lien on the file and hold it until the client pays up. The attorney should be in no better position than any other creditor of the client.
If there is no signed agreement on costs, the attorney treads on thin ice to try to make a client pay for copying costs related to protecting the attorney’s own interests. Hard to argue that the client is bound to pay the attorney’s prospective defensive costs. Definitely the attorney can keep a copy but she would be safer to pay for the copies.
Figuring out what stays and what goes also takes time and consideration. What about my caller with his client at the door? Does he have to just hand over the file? Even if the attorney is being fired, the attorney needs to avoid foreseeable prejudice to his client’s rights. The circumstances of each case may dictate how long the attorney can hold on to the file in order to review and copy it. If it is an active file with imminent deadlines, the attorney is going to have to act faster than a semi-closed case, but if the client is in the lobby in the morning because she’s heard there’s a court appearance in the afternoon, well counsel, start your printer engines.
While it is possible that this attorney-client relationship was running smoothly and suddenly one day the client woke up and decided that she would travel to her attorney’s office and demand volumes of unidentifiable paper, it may be more likely that the client had been giving off signs of unease for some time and the attorney neglected to respond. That, of course, leads me to say, see my previous blog on returning client phone calls!
Mara J. Mamet