96/97-01

Abstract 96/97-01

Summary of Facts Provided

Law firm A represented several co-parties in complex litigation which concluded several years ago and generated voluminous files. Certain of the formerly jointly represented clients ( "Former Clients") continued to be represented by Firm A in other litigation related to the concluded litigation. Former Clients then secured new counsel in the other litigation, and the current litigation files were turned over to the new counsel. Former Clients now are threatening litigation against Firm A relating to one of the active matters and to a portion of the concluded litigation. Former Clients have requested that Firm A turn over the inactive files from the concluded litigation. Firm A regards the inactive files as work product and necessary to its representation of potential new clients in other litigation also related to the subject matter of the concluded litigation. Photocopying the files would be expensive.

Issues and Conclusions

A. Is Firm A required to release the inactive files to Former Clients? The authorities agree that, in the absence of a valid attorney's lien, upon request an attorney must deliver to a client original documents provided to the attorney by the client, documents obtained by the attorney for the client, and the finished work product of the representation. E.g. People v. Shunneson, 814 P.2d 800 (Colo. 1991).

The authorities are not in agreement as to whether an attorney must deliver all documents generated in the course of the representation, such as the attorney's own notes and research. Effectively, this is the issue of whether an attorney may assert a work product privilege vis a vis a client or whether fiduciary duty to the client precludes such assertion. Compare, e.g., ABA Informal Ethics Op. 1376 (Feb. 18, 1977) (decided under DR9-102(B)(4)); Neeb v. Superior Court, 214 Cal. App.3d 693, 262 Cal. Rptr. 887 (4th Dist. 1989) (relying on Calif. Code); and Corrigan v. Armstrong, Teasdale, Schlafly, Davis & Dicus, 824 S.W.2d 92 (Mo. App. 1992), with In re Grand Jury Proceedings, 727 F.2d 941 (10th Cir. 1984); Matter of Kaleidoscope, Inc., 15 B.R. 232 (Bkrtcy. D. Ga. 1981), modified on other grounds, 25 B.R. 729 (D. Ga. 1982); Gottlieb v. Wiles, 143 F.R.D. 241 (D. Colo. 1992); and Martin v. Valley Nat. Bank of Arizona, 140 F.R.D. 291 (S.D.N.Y. 1991).

Colorado Rules 1.15(a) ("property of clients" must be held separately from the attorney's own property) and 1.16(d) (upon termination of the representation the attorney must "surrender[] papers and property to which the client is entitled") do not define "papers" or "property". However, the implication from both rules is that the only exception to the requirement that client papers and property must be returned is when an attorney's lien is permitted by substantive law.

B. If release of files is required, is it sufficient if Firm A merely makes them available for inspection and copying by Former Clients at their expense? The issue of originals versus copies is mooted here, for practical purposes, by the fact of joint representation. Each jointly represented client has an undivided interest in files created in the course of the joint representation.. E.g., Kaleidoscope, Inc., supra; Gottlieb, supra. Former Clients are entitled to full access to the inactive files, but not sole possession of them, because of the other clients' interests. Firm A has a fiduciary obligation to preserve the original files for the benefit of all of the jointly represented clients. Under these circumstances, Firm A's obligation would be met by providing Former Clients a full opportunity to inspect the files and make copies at their own expense.