Much of our discussion at PLM revolves around duties to clients during the time of representation. However, your professional duties and ethical obligations to a client do not end when the engagement ceases. As illustrated by one recent swashbuckling tale, an attorney has a duty to provide a former client with that client’s file, and may not withhold these materials to leverage other benefits, regardless of the circumstances surrounding the end of the engagement.
The client discovered a shipwreck filled with gold, and its attorney assisted the client with obtaining salvage rights. After the representation concluded, the attorney subsequently attempted to obtain salvage rights for himself, alleging he was entitled to these rights because he had provided assistance to the client following the representation by turning over files and documents related to the salvage operation, and these materials proved useful in the continuing salvage of the sunken vessel. The attorney further maintained that this assistance was voluntary because he would have otherwise withheld this file due to the client’s unpaid attorney fees.
The appellate court affirmed dismissal of the attorney’s claim, finding the attorney had been obligated to return the files and documents to his former clients under the applicable rules of professional responsibility, notwithstanding any unpaid fees. Accordingly, the attorney’s act of returning the materials to his former clients was not a voluntary act, as would be required to obtain a salvage award.
The court also considered the attorney’s conduct in light of the professional duty to refrain from using information gained during representation to harm that client following the representation. The attorney had represented the client in successfully obtaining salvage rights, but was now attempting to use information gained during this representation to obtain salvage rights, in competition with his former client.
The attorney in this case engaged in a fair amount of questionable ethical practices. Here are some tips when you find yourself tasked with file transfer following the conclusion of an engagement:
- Transfer tout suite. Model Rule 1.16 requires that, once representation has ended, a lawyer must protect a client’s interests by, inter alia, surrendering papers and property to which the client is entitled. This is true even if the attorney believes he has been unfairly discharged. Consider implementing a policy in your practice to transfer the file. This may avert problems down the road, should a former client claim you failed to provide her with a copy of her file.
- Retain or refrain? As the Comment to Rule 1.16 cautions, jurisdictions have differing rules regarding whether an attorney can withhold a file as security for unpaid fees, as the shipwreck attorney attempted to do in the above case. If your jurisdiction permits this tactic, decide whether it is one you would feel comfortable employing. Some further reading on this topic can be found.
- Two-faced tactics. Whether the attorney’s attempt to “compete” with his former client for salvage rights using information he had obtained during the representation raises some unsettling questions. Per Model Rule 1.9, an attorney cannot use information relating to the representation of that former client to the former client’s disadvantage. Such a double dealing tactic is not only unethical, it will destroy any chance that the former client will come back to you for further legal assistance, and could likely result in a less than sterling reputation among other prospective clients.