Client File Requests | To Give or Not to Give
Many of us have been in the situation where we undertake representation, legal work is in process, and then the client has a change of heart and wants to get their file back. Regardless of the reason, whether they are changing counsel, have a change of heart about pursuing their case, or a variety of other reasons, there is a fairly clear set of guidelines that you must follow in order to steer clear of trouble when a client requests the file returned.
Client File Requests are Common but Often Generate Georgia Ethics Complaints
Client file requests are a fairly common occurrence, but have generated a number of GA Bar ethics hotline calls and sometimes Bar complaints. The motivation for requesting the file’s return are usually clear:
- During – not happy with the representation
- After – just wants the information for posterity, or wants to file a malpractice claim or Bar grievance
When a client asks for the file, it’s probably not good news. Knowing this, lawyers tend to go on the defensive. Sometimes lawyers try to hold the file hostage for the following reasons:
- As collateral to secure payment of unpaid fees
- Information may be intermingled and the lawyer wants to review and “scrub” the files to remove those Post-It notes that say what they really think about the client or their case
However, for whatever reason, by holding the file you could be putting yourself at risk. Here are a few reasons why you can’t hold a file:
Both the Rule and FAO declare that you cannot hold a file hostage for any reason, even to secure payment. As a general rule, you are required to hold the client’s interests paramount to your own and not prejudice client’s interests. In addition, it is imperative that you take all reasonable steps to mitigate foreseeable negative consequences to the client. As a result, you must respond to the client’s request; however, you need not respond to all requests quickly, even the ones where you detect a forthcoming problem.
Sometimes, an attorney may want to copy the file, especially if they detect a potential Bar complaint or lawsuit. Thus, they may request that the client incur the expense of the cost to copy. While you can certainly ask for the payment (the best place is in the fee agreement), you can’t ultimately require this payment.
Client File Request Case Study
A case involving a reputable Atlanta law firm caught considerable attention several years ago when the firm refused to return a memorandum to a client. The firm resisted claiming work product protection over the document. The Georgia Supreme Court (276 Ga 571) held that if the document is prepared during the representation, then it belongs to the client. Specially concurring, Justice Norman Fletcher pointed out that if the lawyer charges for the paper generated, then it is the client’s property. Generally, the State Bar will tell you that the entire file is client property. However, Formal Advisory Opinion 87-5 points out some exceptions. Essentially, you should ask yourself whether you charged for the document’s preparation, or your thoughts memorialized in your notes. If so, you should give it up. Similarly, did you collect or create the paper in furtherance of the representation? If so, once again you should probably give it up. If, however, you have a well reasoned objection to producing a particular document, a proper objection should be memorialized and an in camera inspection conducted.
Review Your E&O Policy Definition of a Claim in The Event of a Client’s File Request
Here’s something else to consider. A recent Federal Court opinion (770 F.Supp.2d 1351) reasoned that a malpractice client’s request for the client’s file from the former lawyer required the lawyer to put his E&O insurance carrier “on notice” because under the lawyer’s malpractice policy the client’s request for the file was interpreted to be a “claim” under the policy’s definition of “claim.” In the end, the client brought a malpractice claim and the Court allowed the E&O carrier to escape having to cover the claim.
General Rules of Thumb for Client File Requests
- Keep your files clean. Never write anything you would not want to be questioned about later under oath.
- Keep your practice procedures clean and efficient – run your business as if all your clients will request their files.
- Don’t hold files hostage. Turn them over without additional charges and in a timely fashion.
- Have your clients sign a receipt when they pick up their file materials or send clients a transmittal letter with the file for delivery by courier, certified post or delivery requiring signature. How much or how little you put in the file transfer letter depends upon the circumstances.
- Check your E&O policy language to ensure that you’re providing adequate notice of a “claim” to your carrier under the specific language of your policy.