Ethics Opinion 104: Surrender of Papers to the Client Upon Termination of the Representation, 04/17/99

Introduction and Scope

The CBA Ethics Committee has received numerous inquiries concerning the responsibility of the lawyer to surrender papers and property to the client upon termination of the representation. These inquiries generally relate to the obligations of the lawyer to deliver the documents and involve discussion of which papers and property the client is entitled to receive. Such debates can be especially difficult when the client’s newly retained counsel seeks delivery of the file from the terminated lawyer, and the steps taken in the course of representation in the past are being challenged or questioned. The purpose of this opinion is to address the general obligations of lawyers to surrender the file upon demand after termination and to discuss what does, or does not, constitute the papers and property to which the client is entitled.

This opinion does not address those situations where a lawyer has not been fully paid and the lawyer is asserting a retaining lien on client papers. For a discussion of the lawyer’s duties in these circumstances, see CBA Ethics Committee Formal Opinion 82, "Assertion of Attorney’s Retaining Lien on Client’s Papers" (April 15, 1989, addendum issued, 1995).¹ For purposes of this opinion, the Committee assumes the lawyer has not asserted a retaining lien upon the papers.

This opinion also does not address the specific obligations of the lawyer to retain and preserve files after closure of the representation.² See "Coping with the Avalanche: A Survey on the Disposition of Client Files" by Doris B. Truhlar and Joseph N. de Raismes, 16 The Colorado Lawyer, 1787 (Oct. 1987)."³ Finally, this opinion does not address whether and under what circumstances all or any part of a lawyer’s file may be subject to disclosure or discovery in civil and criminal proceedings pursuant to applicable law and rules of court.

Syllabus

The primary ethical obligation of a lawyer upon termination of the representation is to take the steps necessary, to the extent reasonably practicable, to protect the client’s interests. One of these steps involves the lawyer’s duty to surrender papers and property to which the client is entitled. Lawyers consistently have been disciplined for blanket refusals to surrender the file to the client upon demand. Since the client may be uninformed about what is, or is not, contained in the file, the lawyer may inquire as to the needs of the client; however, the lawyer should understand that it may be difficult for the client to define what is required. Interrelated with the obligation to protect the client’s interests is the lawyer’s duty to define the client’s needs liberally. In this context, the client’s entitlement is not completely defined by traditional concepts of property and ownership. Rather, the entitlement is based on the client’s right to access the documents related to the representation to enable continued protection of the client’s interests.

There are two primary areas in which the lawyer properly retains papers and documents which do not constitute papers and property to which the client is entitled. One includes documents, used by the attorney to prepare initial documents for the client, in which a third party, e.g., another client, has a right to non-disclosure. A lawyer has the right to withhold pleadings or other documents related to the lawyer’s representation of other clients that the lawyer used as a model on which to draft documents for the present client. However, the product drafted by the lawyer may not be withheld.

A second area involves those documents that would be considered personal attorney-work product, and not papers and property to which the client is entitled. Certain documents may be withheld: for example, internal memoranda concerning the client file, conflicts checks, personnel assignments, and lawyer notes reflecting personal impressions and comments relating to the business of representing the client. This information is personal attorney-work product that is not needed to protect the client’s interests, and does not constitute papers and property to which the client is entitled.

Detailed definition of this second category is difficult. The distinction in this area is factually specific to each situation and must be determined by the lawyer, realizing that the lawyer has a duty to take those steps reasonably practicable to protect the client’s interests by surrendering the necessary information. Generally, such duty favors production. In the event that personal attorney-work product is intertwined with information that should be surrendered, the lawyer should produce factual information in the form of a summary or with personal impressions redacted if necessary. Given the variety of factual circumstances that may arise and the fact that Colorado courts have not addressed this area, the Committee provides its own analysis, together with a summary of authorities from other jurisdictions, to assist the lawyer in analyzing the particular situation which the lawyer may face. In the event of a dispute regarding production of documents in the context of litigation, a review of the documents in camera may be necessary.

Under Colo. RPC 1.16(d), all papers and property to which the client is entitled must be surrendered upon demand within a reasonable time, regardless of duplication costs. In the event that the lawyer decides to retain a copy of these papers and property for the lawyer’s own purposes, the duplication costs for these items are not properly billed to the client. However, in the event that the lawyer voluntarily produces personal attorney-work product, it is appropriate for the attorney to charge the duplication costs of these documents to the client.

It is undecided under Colorado law whether an agreement between the lawyer and the client regarding duplication costs is binding as a matter of contract. While the payment of such charges may be purely a contractual matter, the Committee believes that the terms of such an agreement must be reasonable and otherwise must not violate the Colorado Rules of Professional Conduct. However, retention of papers and property to which the client is entitled until such costs have been paid is subject to the same exceptions to the right of retention as under a properly asserted retaining lien. See CBA Ethics Committee Formal Opinion 82.

DISCUSSION OF THE LAWYER’S
GENERAL OBLIGATIONS

Colo. RPC 1.16(d) states:

Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by law. (Emphasis added.)

The Colorado Supreme Court consistently has recognized the client’s right to the prompt delivery of papers and property to which the client is entitled upon termination of the representation, and the Court consistently has disciplined lawyers for failure to do so. See People v. Rishel, 956 P.2d 542 (Colo. 1998); People v. Holmes, 951 P.2d 477 (Colo. 1998); People v. Davis, 950 P.2d 596 (Colo. 1998); People v. Kuntz, 942 P.2d 1206 (Colo. 1997); People v. McKee, 942 P.2d 494 (Colo. 1997); People v. Mannix, 936 P.2d 1285 (Colo. 1997); People v. Wallace, 936 P.2d 1282 (Colo. 1997); People v. Reynolds, 933 P.2d 1295 (Colo. 1997); People v. Ebbert, 925 P.2d 274 (Colo. 1996); People v. Damkar, 908 P.2d 1113 (Colo. 1996); People v. Kuntz, 908 P.2d 1110 (Colo. 1996); People v. Jamrozek, 914 P.2d 350 (Colo. 1996); People v. Sigley, 917 P.2d 1253 (Colo. 1996); People v. Crews, 901 P.2d 472 (Colo. 1995); People v. Tucker, 904 P.2d 1321 (Colo. 1995); People v. Johnson, 884 P.2d 721 (Colo. 1994); People v. Retrum, 881 P.2d 1205 (Colo. 1994); People v. Felker, 770 P.2d 402 (Colo. 1989). In each of these cases, the lawyer was disciplined for refusing or failing to deliver, after client request, papers to which the client was entitled. The emphasis has been on recognizing the lawyer’s duty to protect the client’s interests rather than in defining in detail what constitutes the "papers and property to which the client is entitled" under Rule 1.16(d).

Since Rule 1.16(d) does not define what constitutes the "papers and property to which the client is entitled," such definition must be derived from the purpose of the rule, which is furtherance of the lawyer’s principal ethical duty reasonably to protect the client’s interests: "[u]pon termination of the representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interest. . . ." In this context, it is the Committee’s opinion that the papers and property to which the client is entitled are not necessarily defined by traditional concepts of property and ownership. Rather, the entitlement is based on the client’s right to access the files related to the representation as a means to enable continuing protection of the client’s interests.

Therefore, upon termination of the attorney-client relationship, except where there is a validly asserted retaining lien, the client should be provided those documents and other property provided by the client and such originals and copies of other documents possessed by the lawyer relating to the representation that the client reasonably needs to protect the client’s interests. This duty is subject to consideration of the narrow qualifications outlined below.

This position is consistent with the majority of cases and ethics opinions that conclude that upon termination of the attorney-client relationship, the client has the right to full access to the file on the represented matter, subject to a few qualifications discussed below. For a discussion of situations where these concerns have been addressed, see In the Matter of Sage Realty Corp. v. Proskauer Rose Goetz & Mendelsohn, L.L.P., 91 N.Y.2d 30, 689 N.E.2d 879, 666 N.Y.S.2d 985 (1997), citing Resolution Trust Corp. v. H. P.C., 128 F.R.D. 647 (N.D. Tex. 1989); State Bar of Georgia, Formal Advisory Op. No. 87-5; Massachusetts Rules of Court, Rule 3.07, DR 2-110[A][4] (West, 1997); Ohio Supreme Ct. Bd. Of Comm’rs on Grievances and Discipline, Op. No. 92-8; Maleski v. Corporate Life Ins. Co., 163 Pa. 36, 641 A.2d 1 (Pa. Cmwlth. 1994); State Bd. of California Standing Committee on Professional Responsibility and Conduct, Formal Op. No. 1992-127; Connecticut Bar Ass’n Committee on Professional Ethics, Op. No. 94-1; State Bar of Michigan Commission on Professional and Judicial Ethics, Syllabus CI-926 (1983); Oregon State Bar Ass’n, Op. No. 1991-125. The lawyer must deliver originals and copies of other documents that the lawyer has which relate to the representation and which the client reasonably needs. See Restatement (Third) of the Law Governing Lawyers, American Law Institute, § 58 (3), comment d (1998).

The Committee notes that Rule 1.16(d) requires the lawyer, to the extent reasonably practicable, to protect the client’s interest, to "surrender" all papers and property to which the client is entitled. The use of this term is intentional and establishes an affirmative obligation upon the lawyer to relinquish possession after demand. While it is appropriate for a lawyer to request a reasonable period to produce the file, a lawyer may not ignore or refuse a client’s request for such papers and property.

An ambiguous request should be met with some inquiry by the lawyer. See Dubose v. Shelnutt, 566 So.2d 921 (Fla.App. 5 Dist. 1990) (client request for "depositions of following witnesses" placed a duty on the lawyer to call the client and find out exactly what the client needed.) See also Matter of Struthers, 877 P.2d 789 (Ariz. 1994); Finch v. State Bar of California, 170 Cal. Rptr. 629, 621 P.2d 253 (Cal. 1981); People v. Damkar, 908 P.2d 1113 (Colo. 1995); Matter of Kelly, 655 N.E.2d 1220 (Ind. 1995); Comm. on Prof. Ethics & Conduct v. Leed, 477 N.W.2d 390 (Iowa 1991); Matter of England, 894 P.2d 177 (Kan. 1995); Kentucky Bar Ass’n v. Delahanty, 878 S.W.2d 795 (Ky. 1994); In re Turissini, 655 So.2d 327 (La. 1995), In re Disciplinary Action Against Cowan, 540 N.W.2d 825 (Minn. 1995); Matter of DePietropolo, 603 A.2d 951 (N.J. 1992); Cleveland Bar Ass’n v. Bancsi, 651 N.E.2d 949 (Ohio 1995); Matter of Meeder, 463 S.E.2d 312 (S.C. 1995); In re McCarty, 665 A.2d 885 (Vt. 1995); State Bar Committee on Legal Ethics v. Karl, 449 S.E.2d 277 (W.Va. 1994); but see Matter of Curtis, 908 P.2d 472 (Ariz. 1995) ( lawyer did not violate prompt return provision where the client had retained originals and had given the lawyer copies).

Numerous questions may arise concerning the costs of duplication of the papers and property at the time of delivery. Generally, consistent with recognition that the file must be surrendered to the client, absent agreement to the contrary, it is the lawyer’s responsibility to bear duplication costs if the lawyer believes that the lawyer should retain a copy.⁴ The fact that copies of documents may have been provided to the client previously does not eliminate the responsibility of the lawyer to provide the client with the file. If the lawyer wishes to keep copies of the documents to which the client is entitled, the lawyer can do so at the lawyer’s own expense.

Unless there is a valid agreement to the contrary, refusal to provide the papers and property contained in the file until the client pays duplication costs restricts the client’s right to the file and is improper. See McKim v. State, 528 N.E.2d 484 (Ind.App., 1 Dist. 1988) (attorney could not refuse to relinquish documents contingent upon client payment of copying costs); In re Admonition Issued in Panel File No. 94-24, 533 N.W.2d 852 (Minn. 1995); In re X.Y., 529 N.W.2d 688 (Minn. 1995); Alaska Ethics Opinion 95-6 (1995); Kansas Ethics Opinion 92-05 (1992); Michigan Ethics Opinion RI-203 (1994). Note, however, that this responsibility would not necessarily apply to those categories of documents to which the client is not entitled as further discussed in this opinion in the event that the lawyer voluntarily decides to make these documents available to the client.

The Committee is aware that many fee agreements seek specifically to establish the obligations of the lawyer and client for payment of duplication costs. While the payment of such charges may be purely a contractual matter, see, e.g., ABA Informal Op. 1376 (Feb. 18, 1977), the Committee believes that such terms must be reasonable and otherwise must not violate the Colorado Rules of Professional Conduct. Retention of documents contingent upon payment of duplication costs is subject to the same exceptions that apply to a properly asserted retaining lien as discussed more completely by the Committee in CBA Ethics Committee Formal Opinion 82. See Kallsen v. Big Horn Harvestore Systems, Inc., 761 P.2d 292 (Colo. App. 1988).

DOCUMENTS TO WHICH THE
CLIENT IS NOT ENTITLED

Documents Protected from Disclosure Based Upon Third Party Interests

The client is not entitled to the production of documents obtained from or prepared for a third party, most commonly another client, that are used by the lawyer as guides or models in the current representation. The lawyer is not required to disclose documents that may violate the duty of confidentiality and nondisclosure owed to some third party, or otherwise imposed by law.⁵ In the event that a pleading from a file related to the representation of a third party was used as a draft for the requesting client, it properly may be withheld. However, the pleading that was drafted for the requesting client from that model is not within this exception. Drafts of pleadings, if maintained in the file and not destroyed in the normal course of the representation, should be produced.

Personal Attorney—Work Product
Authorities differ as to the responsibility of the lawyer to produce personal attorney-work product that is contained in the file.⁶ These discussions focus on varying definitions of what constitutes personal attorney-work product and the lawyer’s responsibilities related to various portions of documents identified as personal attorney-work product.

Virtually all authority that has discussed this category recognizes that personal attorney-work product does not include documents belonging to the client or documents which are the "end product" of the attorney’s services. These documents must be produced to the client. End product items include pleadings filed in the action, correspondence with the client, opposing counsel and witnesses, and final versions of contracts, wills, corporate records and similar records prepared for the client’s actual use. See, e.g., Illinois State Bar Ass’n, Op. No. 94-13.

While there is some authority to the contrary,⁷ the majority of authority asserts that preliminary drafts, legal research, and legal research memoranda are not properly retained by the attorney as personal attorney-work product and must be surrendered. The Committee agrees with this view.⁸

Internal firm administration documents, such as conflicts checks and personnel assignments, properly are retained as personal attorney-work product. The lawyer may withhold certain firm documents that were intended for law office management or use. Production would not be needed to protect the client’s interests in the matter.

It is much more difficult to address personal lawyer notes, especially those notes containing personal impressions and comments. While recognizing that clear direction in this area depends on the specific facts encountered by a lawyer, the Committee reminds lawyers that the client’s interests must be protected to the extent reasonably practicable. For example, if certain lawyer notes contain factual information, such as the content of client interviews, the information in those notes should be delivered to the client. In the event that certain personal impressions are intertwined with such factual information, those notes could be redacted or summarized to protect the interests of both the client and the lawyer.

Some authority has applied definitions in this area that do not mirror the opinion of the Committee stated in this opinion. Various definitions of "work product" and accompanying discussions can be found in: In the Matter of Sage Realty Corp., supra ("documents containing a firm attorney’s general or other assessment of the client, or tentative preliminary impressions of the legal or factual issues presented in the representation, recorded primarily for the purposes of giving internal direction to facilitate performance of the legal services entailed in that representation"); ABA Informal Opinion 1376 (Feb. 18, 1977) ("lawyer need not deliver [to client] his internal notes and memos which have been generated primarily for his own purpose in working on the client’s problem"); Arizona Ethics Opinion No. 81-32 (papers and documents belonging to client do not include "attorney’s own notes and memos to himself; nor his myriad scratchings on note sheets; nor records of passing thoughts dictated to a machine or a secretary and placed in the file; nor ideas, plans or outlines as to the course the attorney’s representation is to take"); Delaware Ethics Opinion 1997-5 (Nov. 5, 1997) ("lawyer’s working notes, impressions and draft documents"); Illinois Ethics Opinion No. 94-13 (Jan. 1995) ("lawyer’s notes, drafts, internal memoranda, legal research and factual research materials, including investigative reports, prepared by or for the lawyer for use of the lawyer in the representation"); Kansas Ethics Opinion 92-05 (July 30, 1992) (includes attorney’s "recorded mental impressions, research notes, legal theories, and unfiled pleadings included in the client’s file"); ABA/BNA Lawyer’s Manual on Professional Conduct 31:1206 (examples of lawyer’s work product include "recorded mental impressions, research notes, legal theories, and unfiled draft documents").

The lawyer should err on the side of production. If documentation is retained and production requests persist, disputes concerning access to documents which the lawyer perceives to be personal attorney-work product may need to be resolved by a court after judicial inspection of the documents in camera. See, e.g., People v. Salazar, 835 P.2d 592 (Colo.App. 1992).