Formal Opinion 104: Surrender of Papers to the Client Upon Termination of the Representation

• Publication year: 1999
• Pages: 53
• Citation: Vol. 28 No. 7 Pg. 53

28 Colo.Law. 53 Colorado Lawyer 1999.

1999, July, Pg. 53. Formal Opinion 104: Surrender of Papers to the Client Upon Termination of the Representation

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53

Vol. 28, No. 7, Pg. 53

The Colorado Lawyer
July 1999
Vol. 28, No. 7 [Page 53]

Departments
CBA Ethics Committee Formal Opinions
Formal Opinion 104: Surrender of Papers to the Client Upon Termination of the Representation

The following Formal Opinion was written by
the Ethics Committee of the Colorado Bar Association

[Formal Ethics Opinions are issued for advisory purposes only and are not in any way binding on the Colorado Supreme Court the Presiding Disciplinary Judge, the Attorney Regulation Committee, or the Office of Attorney Regulation Counsel and do not provide protection against disciplinary actions.]

104 Surrender of Papers to the Client Upon Termination of the Representation
Adopted April 17, 1999

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,...