After a client discharges a lawyer, can the lawyer keep certain items from the file rather than turn them over to the client?

Plain-English summary

The committee was asked whether a discharged lawyer may refuse to deliver certain items in the file to the client. It answered with a qualified yes, framed around what the lawyer must return and the narrow set the lawyer may keep. The committee assumed the fee had been paid, setting aside any attorney's-lien question as a matter of law it could not decide.

Drawing on ABA Informal Opinion 1376 (which listed the materials due a client in a trademark matter, including the lawyer's file notes, attorney-client and third-party correspondence, client-furnished materials, filings, searches paid for by the client, copies of pleadings, and legal research in memos or briefs), the committee said the principle is simple: the client is entitled to receive what he paid for and the return of what he delivered to the lawyer, and beyond that the conscientious lawyer should not withhold any item that could reasonably be anticipated to be useful to the client. DR 9-102(B)(4) requires delivery of other properties in the lawyer's possession that the client is entitled to receive.

The committee recognized one protected category. Under Kentucky Civil Rule 26.02(3), a lawyer need not give the other side work product, and the committee found the work-product privilege likewise protects the lawyer from having to give it to the client on discharge. Work product covers the lawyer's mental impressions, conclusions, opinions, or legal theories generated primarily for the lawyer's own purposes in working on the client's problem. Even so, the committee said the lawyer may want to duplicate file contents, and only in rare instances should anything be retained without giving the client a copy. Finally, on releasing the file the lawyer should be conscious of EC 6-6 and DR 6-102(A), which bars a lawyer from attempting to exonerate himself from, or limit his liability to, the client for the lawyer's own malpractice.

Currency note

This opinion was issued in 1980 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: After a client fires a lawyer, what file items must the lawyer return?

A: What the client paid for and what the client delivered, plus anything that could reasonably be anticipated to be useful to the client, under DR 9-102(B)(4).

Q: Can the lawyer keep anything from the file?

A: Genuine work product. The committee said the work-product privilege (KY Civil Rule 26.02(3)) protects the lawyer's mental impressions, conclusions, opinions, and legal theories generated primarily for the lawyer's own purposes.

Q: Should the lawyer keep originals and give the client copies?

A: The committee said the lawyer may want to duplicate file contents, and only in rare instances should anything be retained without giving the client a copy.

Q: Can a lawyer hold the file to protect against a malpractice claim?

A: No. On releasing the file the lawyer must heed DR 6-102(A), which bars attempting to limit liability to the client for the lawyer's own malpractice.

Background and rules framework

The opinion applies the duties triggered on termination and the safekeeping rules: DR 2-110 (declining or terminating representation), DR 9-102(B)(4) (delivery of client property), and DR 6-102(A) (no self-exoneration for malpractice), with the work-product protection of Kentucky Civil Rule 26.02(3). The modern analogs are Model Rule 1.16(d) (surrender of papers and property on termination), Model Rule 1.15 (safekeeping property), and Model Rule 1.8(h) (limiting malpractice liability).

Citations and references

Rules of Professional Conduct:

• DR 2-110 (termination), DR 9-102(B)(4) (delivery of client property), DR 6-102(A) and EC 6-6 (no self-exoneration); modern analogs Model Rules 1.16(d), 1.15, and 1.8(h)

Statutes and rules:

• Kentucky Civil Rule 26.02(3) (work-product protection in discovery)

Cases:

• Mervin v. F.T.C., 591 F.2d 821 (1978), scope of work product (mental impressions, conclusions, opinions, legal theories)

Other opinions cited:

• ABA Informal Opinion 1376 (materials a client is entitled to receive)

See also

• KBA Ethics Op. E-280: Copying a Discharged Client's File
• KBA Ethics Op. E-269: Discharged Contingent-Fee Lawyer
• KBA Ethics Op. E-247: Skipping Court Over Unpaid Fees

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-235.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-235
Issued: May 1980

This opinion was decided under the Code of Professional Responsibility, which was in effect from 1971 to 1990. Lawyers should consult the current version of the Rules of Professional Conduct and Comments, SCR 3.130 (available at http://www.kybar.org), before relying on this opinion.

Question:

When a lawyer has been discharged by a client may he refuse to deliver certain items in the file to the client?

Answer:

Qualified yes.

References:

DR 2-110, 6-102(A), 9-102(B)(4); ABA Informal Opinion 1376; CR 26.02(3); EC 6-6; Mervin v. F.T.C., 591 F.2d 821 (1978)

OPINION

This question differs from when an attorney withdraws from a case under DR 2-110. In answering this question, we assume that the lawyer's fee has been paid (since there may be a question of an attorney's lien which is a question of law of which this Committee is not authorized to answer).
In a related opinion, ABA Informal Opinion 1376, the American Bar Association stated that the following specific materials must be given to the client in a Trademark case:
A. Notes and memos to the file prepared by the attorney containing recitals of facts, conclusions, recommendation);
B. Correspondence between attorney and client;
C. Correspondence between attorney and third party;
D. Material furnished by the client (for example, labels applying the trademark);
E. Application, receipts, affidavits filed, in respect to use, etc. All pertaining to registration of trademarks for the client
F. Searches made at the expense of the client;
G. Copy of the pleadings and the like file in an administrative or court proceedings;
H. Legal research embodied in the memos or briefs.

It seems to the Committee that the ethical principles involved are simple. The client is entitled to receive what he has paid for and the return of what he has delivered to the lawyer. Beyond that, the conscientious lawyer should not withhold from the client any item which could reasonably be anticipated to be useful to the client. DR 9-102(B)(4) provides that the lawyer shall deliver to the client other properties in the possession of the lawyer which the client is entitled to receive.
Kentucky Rules of Civil Procedure 26.02(3) in essence provides that a lawyer need not deliver to the other side part of the discovery of the "work product." The Committee feels that the attorney's work product privilege protects a lawyer and need not be given to the client in the event of discharge. The "work product" would include disclosures of mental impressions, conclusions, opinions, or legal theories which have been generally generated primarily for his own purposes in working on the client's problem. See Mervin v. F.T.C, 591 F.2d 821 (1978).
It seems to the Ethics Committee that the lawyer may very well want to duplicate copies of things within the file of the client; however, only in rare instances should any thing be retained by the lawyer without giving a copy of that document to the client.
A lawyer, upon releasing the file to a client, should be conscious of EC 6-6 and DR 6-102(A). The latter reads as follows:
A lawyer shall not attempt to exonerate himself from or limit his liability to his client for his personal malpractice.

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor rule). The Rule provides that formal opinions are advisory only.