Under Model Rules of Professional Conduct 1.15 and 1.16, a lawyer must safeguard a client’s property and deliver it promptly to the client upon the client’s request and upon termination of representation a lawyer shall take whatever steps are reasonably practical to protect a client’s interest. The ABA recently issued a formal opinion clarifying and updating a lawyer’s ethical obligations under these Rules and addressing practical considerations regarding the application of these Rules to practice.
The opinion addresses a scenario in which a lawyer has represented a municipality for 10 years pursuant to a contract for legal services. After the contract expired, the municipality retained a different lawyer and asked the former counsel to provide the new lawyer with all files in the lawyer’s possession- open and closed.
In analyzing what exactly the former attorney is required to provide under the foregoing scenario, the opinion notes that many jurisdictions vary in the interpretation of “papers and property to which the client is entitled” under Rule 1.16. Some jurisdictions follow the “entire file” approach. Under this approach, a lawyer must turnover papers and property related to the representation unless the lawyer establishes that a specific exception applies. Commonly recognized exceptions include: materials that would violate a duty of non-disclosure; a lawyer’s assessment of the client; internal firm communications; and material that could endanger the health, safety, or welfare of the client or others.
Other jurisdictions have adopted the “end product” approach, which distinguishes between documents that are the “end product” of a lawyer’s services and documents or other materials that may have led to the creation of that “end product”. Under this approach the lawyer must surrender “correspondence by the lawyer for the benefit of the client; investigative reports and other discovery for which the client has paid; and pleadings and other papers filed with a tribunal.” The client is also entitled to copies of contracts, wills or other corporate records prepared by the attorney for the client. Items that are not considered “end product” include administration materials, notes, drafts, research, and time or expenses records.
The opinion concludes that in the factual scenario presented, unless the law of the jurisdiction provides otherwise, the “the ethical entitlement is based on the client’s right to access the document related to the representation to enable continued protection of the client’s interest.” Therefore, Rule 1.16 would require the former lawyer to provide among other things, any materials provided by municipality, contracts, discovery, expert reports, legal opinions issued at the request of the municipality and third party assessments paid for by the municipality. The lawyer would not be required to turnover papers or property generated for the lawyer’s own purpose in working on any matter pertaining to the municipality.
While the foregoing opinion provides guidance on the ethical obligations lawyers face when representation is terminated, lawyers need to be mindful of the specific obligations of their jurisdiction in order to avoid any unnecessary discipline for failure to properly comply the with ethical obligations of surrendering client papers and property.