The need for clarity with respect to what makes up the “client file” has been an issue I have tried to stay up to date on dating back to our unsuccessful efforts back in 2009 to convince the Tennessee Supreme Court to adopt a rule – what would have been RPC 1.19 — to address the issues. As I’ve explained before, our unsuccessful RPC 1.19 was patterned largely after North Dakota’s Rule 1.19. There is no ABA Model Rule addressing client files and, as recently as last year, the ABA’s guidance as to client files still leaves many questions open so states navigate these waters pretty much on their own using only the language about lawyers’ obligations to “surrender papers and property of the client” in their versions of Model Rule 1.16.
As you may recall from a couple of posts I wrote last year, some seven years later we’ve obtained some real clarity in Tennessee on a few fronts as to client files through two Formal Ethics Opinions issued by our Board of Professional Responsibility. Particularly, we now have clear guidance that we are an “entire file” jurisdiction rather than an “end product” jurisdiction regarding what are the contents of the client file.
Late last year, Arkansas adopted its own RPC 1.19 addressing client file issues but although they went with an approach that adopts a black letter rule to address the matter, they’ve gone in the opposite direction from us as Arkansas RPC 1.19 opts for an “end product” approach. Technically, Arkansas has been an “end product” jurisdiction for more than seven years dating back to a 2009 opinion of the Arkansas Supreme Court – Travis v. Committee on Professional Conduct. You can read the Arkansas Supreme Court order with the full text of RPC 1.19 and its comments here.
The architecture of this new Arkansas rule tackles client file questions in two parts.
RPC 1.19(a) defines what makes up the contents of the client file both positively [(a)(1) identifies items that are in] and negatively [(a)(2) identifies items that are excluded] . The most important exceptions being “the lawyer’s work product,” “internal memoranda,” and “legal research” materials. It appears though that (a)(2)(E) serves to override any attempt to view (a)(1) as a comprehensive identification of what is included as that subpart explains that anything that isn’t listed as excluded in (a)(2)(A-D) are things that “shall be considered to be part of the client file to which the client is entitled.” RPC 1.19(a) also addresses the need to honor requests by the client for delivery of file and when a lawyer may charge costs of copying or retain a copy for their own purposes. Smartly, the rule also expressly clarifies that a lawyer and client can address all of those issues regarding copy costs and delivery costs in a fashion they prefer by contract as part of the engagement agreement.
RPC 1.19(b) addresses the length of the obligation to retain client file records and under what circumstances a lawyer can destroy client files in his possession. Five years is the default length of time chosen for retention in Arkansas, and any time after that the lawyer is free to destroy the file materials. RPC 1.19(b)(3) also makes clear that these time frames can be varied by contract between attorney and client. RPC 1.19(b)(4) takes certain criminal matters out of the general rules of retention and destruction, however, and instead requires the lawyer to maintain the client’s file for the life of the client in those particular situations.
Another jurisdiction has weighed in recently but differs from what Arkansas has done both structurally and substantively. Wisconsin recently put out an ethics opinion to further clarify the obligations lawyers have to clients in terms of turning over files at the end of the representation. Wisconsin, like Pennsylvania, denies public access to its ethics opinions, but you can read a well-written article about Wisconsin Formal Ethics Op. EF-16-03 here.
The primary focus of the formal opinion appears to be clarifying that lawyers can neither try to leverage retaining the client file in order to obtain payment nor condition turning the file over upon the execution of a release of malpractice liability. (Both things you might be surprised to hear about how often lawyers attempt to do despite the perils.)
But Wisconsin’s latest opinion on the subject matter also addresses some of the same vital issues that are at the heart of resolving situations involving disputes between attorneys and clients over who is entitled to what. Unlike Arkansas, Wisconsin takes an approach more in keeping with the “entire file” approach to the question as several items carved out from the file in Arkansas are not in Wisconsin. The Wisconsin opinion specifically identifies “legal research and drafts of documents that are relevant to the matter” as being included in the client file as well as “[a]ny materials for which the client has been billed, either directly or through lawyer or staff time.”
Yet, the Wisconsin opinion does limit certain categories of items as being allowed to be withheld from the client — including two items that were at the heart of the battles that doomed our effort in Tennessee to adopt an RPC 1.19 of our own — “materials containing information, which, if released, could endanger the health, safety, or welfare of the client or others,” and “materials that could be used to perpetrate a crime or fraud.” Interestingly, however, the Wisconsin opinion also crafts an exclusion for materials that seems pretty antithetical to the idea that the guidance is really consistent with Wisconsin being an “entire file” jurisdiction:
Materials containing the lawyer’s assessment of the client, such as personal impressions and comments relating to the business of representing the client. If a lawyer’s notes contain both factual information and personal impressions, the notes may be redacted or summarized to protect the interests of both the lawyer and the client.
The Wisconsin opinion also addresses the inability of the lawyer to hold the file hostage as a way to first receive payment and provides a clear answer that a lawyer cannot refuse to provide the entire file at the end of the representation based on an argument that lawyer provided everything to the client along the way during the life of the representation. The Wisconsin opinion also offers insight on when the lawyer has to provide a client with an electronic copy of a file and stresses that while a lawyer can retain a copy of the file, the lawyer cannot charge for that expense because that is being done for the lawyer’s own benefit.
Another interesting wrinkle of the Wisconsin opinion is that it gives a nod to a scenario that is rarely discussed in such opinions — though it does come up in discussions of “red flags” of new client intake matters — but that is an exceedingly difficult situation to deal with: “There may be unusual circumstances where a client has specifically instructed a lawyer not to surrender a file to a successor counsel, and the lawyer must abide by those instructions.”
In the end though, both the Wisconsin opinion and, in part, the Arkansas rule, offer guidance that furthers what ought to be the primary, practical guidance for lawyers given the disparities that exist on this issue from jurisdiction to jurisdiction — the more focus can be given to these issues in an engagement agreement such that you can have a contractual agreement between lawyer and client on just what will be provided, how, and when (and at whose cost) the better off all involved will be.