June 2006 - #7. ETHICS MATTERS - Ethical Handling of Client Files.

• Author: by Wendy S. Collins, Esq.

Vermont Bar Journal

2006.

June 2006 - #7.

ETHICS MATTERS - Ethical Handling of Client Files

THE VERMONT BAR JOURNAL #165, Volume 32, No. 1 Spring (June) 2006

ETHICS MATTERS - Ethical Handling of Client Filesby Wendy S. Collins, Esq.What should a lawyer do with the client file when either the lawyer decides to withdraw from the case or the client tells the lawyer it is time for substitute counsel?

Terminating the attorney-client relationship can be a professionally challenging experience, one that places specific ethical duties upon the lawyer who is being discharged or who wishes to withdraw. Pursuant to Rule 1.16(d) of the Vermont Rules of Professional Conduct, the discharged or withdrawing lawyer:

shall take steps 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 other law.

The question repeatedly arises: What are the lawyer's obligations in regard to the file? Rule 1.16(d) tells us that you must surrender "papers and property to which the client is entitled" although you "may retain papers relating to the client to the extent permitted by other law." The rule begs the question as to exactly what documents the client is entitled.

The majority of jurisdictions who have considered this issue have concluded that the client is entitled to all of the documents in the file because the client is the owner of the file. The lawyer must, therefore, surrender the original file to the client and do so promptly. If the lawyer wishes to retain a copy, the copying must be done at the lawyer's expense, absent a clear statement to the contrary in the fee agreement.(fn1) To do otherwise carries with it the risk of disciplinary action.(fn2)

The more difficult question arises if there is a fee dispute between the client and the former attorney. Is the client still entitled to the file if the lawyer believes the client owes him money for his services? Can the attorney assert a valid retaining lien over the file?

The Rules of Professional Conduct as adopted in Vermont in 1999 recognize the continuing existence of the common law...