New ABA Formal Ethics Opinion Avoids As Many (or More) Questions Than It Answers Actually

Several years ago, we attempted in Tennessee to have our Court adopt an ethics rule that would specifically address what constituted client file materials. The effort was unsuccessful despite the fact that the rule we proposed was a strong, well-written rule. The primary reason we were unsuccessful was (as you’ll decipher from pages 24-25 of the PDF at the next link) that prosecutors and criminal defense attorneys were united in being uncomfortable with the rule because of how it would apply to criminal defendants. If you want to take a gander at our unsuccessful proposed RPC 1.19, you can find it here at pages 103-04. The lesson that at least I walked away from the experience learning was that coming up with a comprehensive solution within the ethics rules to what belongs to the client, and what belongs to the lawyer, is likely too difficult a task to manage.

From a practical standpoint, my typical advice to lawyer clients in this area tends to be that the starting point is that everything in your file is likely required to be produced to your client, or former client, if requested and that work through particular materials item by item to see if you can justify withholding/withstand attack on a decision to hold back. This usually, for example, ends up meaning that, when you study the language of our RPC 1.16(d), anything that the lawyer might think would be worth holding on to because its value to the case might cause the client/former client to make good on owed attorney fees is something that the rule specifically requires the lawyer to turn over because “retention of the work product will [] have a materially adverse effect on the client with respect to the subject matter of the representation.”

Today, the ABA has issued Formal Ethics Opinion 471, entitled “Ethical Obligations of Lawyer to Surrender Papers and Property to which Former Client is Entitled.” Although this opinion will be of some use to lawyers, I think that it really manages to further demonstrate how difficult it is to provide bright-line guidance in this area. It carves away many facts/factors and issues that usually are really important and in the mix when lawyers are trying to make these decisions and thereby doesn’t answer a stream of questions that lawyers usually want to know answers to in this area, such as:

  • What if the client/former client hasn’t paid all my bills and still owes me money? Can’t I use the lien law to hold back file materials?
  • I’m not sure I have stuff going back more than 4 or 5 years. Is that going to be a problem?
  • Do I have to give them a paper copy and an electronic copy of the same items, or can I just do one or the other, and who picks?
  • What if I’ve given them copies of everything as the matter progressed? Do I have to provide that stuff again?

Some of these questions are at least acknowledged in the opinion in footnotes or otherwise as topics that lawyers should be encouraged to try to plan for or reach agreement in advance with their clients.

But even as to the one question that the opinion announces it is deciding, its answer is significantly less than definitive. While the lead headline will likely be that the ABA Opinion adopts the “end product” rather than “entire file” approach. Lawyers who just pay attention to the headline might be walking into a real mess because, to me, one of the most important aspects of the opinion from a practical standpoint is the last paragraph on page 6 and the last sentence of the conclusion.  These parts are where the ABA explains that if the client terminates the lawyer’s representation  before a matter is over, then even things such as notes and memos generated for the lawyer’s own internal purposes and which are not “end product” must also be provided if necessary to avoid harming the client’s interests.