When a lawyer withdraws, must the lawyer pay to mail the client's file, or is making it available for pickup at the office enough?

Plain-English summary

An attorney terminating a representation asked whether he must assume the expense of turning the file over to the client, that is, whether making the file available for pickup at his office is sufficient or whether he must mail or otherwise deliver it into the client's hands at his own expense.

The Commission resolved the question under Bar Rule 3.5(a)(2), which provides that a lawyer shall not withdraw until taking reasonable steps to avoid foreseeable prejudice to the client's rights, including giving due notice, allowing time to employ other counsel, and "delivering to the client all papers and property to which the client is entitled." Although "delivering" could be read to require the lawyer to convey the file into the client's hands, the Commission concluded the lawyer's ethical obligation is ordinarily satisfied by making the file available for pickup at the office. It reasoned that the rule's primary purpose was to keep the lawyer from delaying the client's case by withholding the file, not to impose the cost of transporting it to a particular location. Because the transfer ordinarily benefits the client, it is reasonable to require the client to assume the cost of mailing or other delivery if unwilling to pick it up.

The Commission noted two qualifications. A footnote referencing Opinion No. 51 (1984) stated that the cost of any copying the lawyer wishes to make should be borne by the lawyer, since the file belongs to the client and copies are for the lawyer's own benefit. Another footnote acknowledged a different result might obtain where, for example, the client urgently needs the file for pending litigation and lacks funds to arrange a timely transfer.

Currency note

This opinion was issued in 1991, before Maine's replacement of the former Maine Bar Rules with the Maine Rules of Professional Conduct (effective August 1, 2009). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: When a lawyer withdraws, must the lawyer mail the file at the lawyer's expense?

A: The opinion concluded ordinarily no. Making the file available for pickup at the office satisfies the duty; the client bears the cost of mailing if unwilling to pick it up.

Q: What is the purpose of the delivery requirement?

A: The opinion reasoned the rule's primary purpose is to prevent the lawyer from delaying the client's case by withholding the file, not to impose transport costs on the lawyer.

Q: Could the lawyer charge the client for copying the file?

A: The opinion stated (citing Opinion No. 51) that because the file belongs to the client, the cost of any copies the lawyer makes for the lawyer's own benefit should be borne by the lawyer.

Q: Are there exceptions to the client bearing the delivery cost?

A: The opinion noted a different result might obtain where the client urgently needs the file for pending litigation and lacks funds to arrange timely transfer.

Background and rules framework

The opinion interprets Maine Bar Rule 3.5(a)(2), which conditions withdrawal on taking reasonable steps to avoid foreseeable prejudice to the client, including delivering all papers and property to which the client is entitled. This corresponds to ABA Model Rule 1.16(d) (duties on termination, including surrendering papers and property to which the client is entitled).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.16(d) (duties on termination; surrendering the client's papers and property)
• Maine Bar Rule 3.5(a)(2)

Other opinions cited:

• Maine Professional Ethics Commission Op. 51 (1984): copying costs borne by the lawyer

See also

• Maine Ethics Op. 187: What's in the Client File
• Maine Ethics Op. 183: Electronic File Retention
• ABA Formal Op. 471: Surrendering the Client File

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=89868

Original opinion text

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

Issued by the Professional Ethics Commission

Date Issued: December 11, 1991

Question

An attorney has inquired as to whether an attorney who is terminating his relationship with a client is obliged to assume the expense of turning the file over to the client. The question is essentially whether it is sufficient for the attorney to make the file available for the client to pick up at his office or whether he is required to mail the file at his own expense or otherwise deliver it into the client's hands.[1]

Opinion

Resolution of the question presented is controlled by Bar Rule 3.5(a)(2). That rule states that:

(2) A lawyer shall not withdraw from employment until the lawyer has taken reasonable steps to avoid foreseeable prejudice to the rights of the lawyers client, including giving due notice to the client, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled. . . .

The inquiry presented concerns the interpretation to be given to the word "delivering" in reference to the papers and property of the client. Although this term could be read as requiring the attorney to assume responsibility for conveying the file into the clients hands, the Commission is of the opinion that the attorneys ethical obligation will ordinarily be satisfied simply by making it available for the client to pick up at the attorneys office. We think the primary purpose of the rule was to insure that the attorney in question would not delay the processing of the clients case by withholding the file rather than to impose upon him the cost of transporting it to a particular location. Since the transfer of the file would ordinarily be for the benefit of the client, it seems reasonable to require the client to assume the cost of mailing or other form of delivery if he is unwilling to pick it up at the attorneys office.[2]

Footnotes

[1] A subsidiary question as to whether an attorney can condition delivery of the file upon payment of costs of copying has been answered in a previous opinion. See Opinion #51 (1984). Since the file belongs to the client, the cost of any copying should be borne by the attorney since any such copies would be solely for his or her own benefit.

[2] The Commission can nevertheless conceive of circumstances in which a different result might obtain if, for example, the client urgently required the file in order to pursue or defend pending litigation and lacked sufficient funds to arrange a timely transfer.