Can a lawyer who left a firm get copies of the closed files for the clients she handled there?

Plain-English summary

A non-equity partner whose practice was largely divorce litigation left a firm and asked to remove the closed files of clients she had represented (work that often generates post-dissolution matters). The firm refused, but offered to let her copy and return the files, or to copy them for her at her cost, in either case requiring a signed client authorization. The firm took the position that closed files belong to the firm, not the client. The questions were whether the firm's position was correct and whether its form letter to clients was proper.

The opinion applied Rules 1.4 and 1.15. It concluded that a client cannot be denied access to his or her file, and that neither rule distinguishes between open and closed files. It concluded that a departed lawyer may need access to a closed file without client consent in various circumstances, such as post-dissolution proceedings or continuing legal and ethical responsibilities (an ARDC inquiry, conflicts review), and that a lawyer no longer with the firm may have access to closed files of clients with whom she had an attorney-client relationship.

Consistent with Opinion No. 94-13, the opinion concluded the firm is not required to act as a storage facility and may charge the reasonable expense of retrieving and copying. If the lawyer requests copies for herself, she bears the cost; if for the client, the client should be told of the potential cost. The opinion concluded the firm's form letter, disclosing the cost and seeking the client's signature before incurring it, is an appropriate method of communication consistent with Rule 1.4, and noted Illinois firms must retain client property for seven years under Rule 1.15(a). It concluded the firm's position is correct and overlooks no ethical considerations.

Currency note

This opinion was issued in 1995, before Illinois adopted the 2010 Illinois Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in May 2010 as generally consistent with the 2010 Rules (referring to Rules 1.4 and 1.15(a) and (d)), while noting the specific standards referenced may differ from the 2010 Rules. Subsequent rule amendments or later opinions may have changed the analysis. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Can a lawyer who left a firm still access the closed files of her former clients?

A: The opinion concluded yes, where she had an attorney-client relationship with the client, because she may have continuing responsibilities and the matter may generate later proceedings.

Q: Do closed files "belong" to the firm so the client can be cut off?

A: The opinion concluded a client cannot be denied access to a file, and the rules do not distinguish between open and closed files; the firm's position that it may charge for copies, however, was correct.

Q: Who pays for retrieving and copying the files?

A: The opinion concluded the firm may charge the reasonable expense. If the departed lawyer wants copies for herself, she pays; if for the client, the client must be told of the cost in advance under Rule 1.4.

Background and rules framework

The opinion interpreted Rule 1.4 (keeping the client reasonably informed, including advance disclosure of costs; Model Rule 1.4) and Rule 1.15 (safekeeping client property, the seven-year retention requirement, and delivery of files; Model Rule 1.15). It applied the file-category framework of Opinion No. 94-13.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.4 (communication) / Illinois Rule 1.4
• Model Rule 1.15 (safekeeping property) / Illinois Rule 1.15(a), (b)

Other opinions cited:

• ISBA Advisory Opinions Nos. 94-13 and 94-14

See also

• ISBA Ethics Op. 94-13: A Lawyer's File Versus the Client's File
• ISBA Ethics Op. 94-14: Returning the File After Discharge
• ABA Formal Op. 489: Notice When Lawyers Change Firms

Source

• Landing page: https://www.isba.org/ethics/opinions/9502