When a client fires a lawyer and hires a new one, must the discharged lawyer turn over the entire file, including his own work product?

Plain-English summary

A client discharged his lawyer and hired another, then asked the discharged lawyer to turn over the file. The discharged lawyer agreed to turn over papers belonging to the client but refused to turn over any portion of the file he considered his work product. The inquiry asked what the discharged lawyer's obligation was.

The opinion concluded that a discharged or withdrawing lawyer is not obligated to turn over his entire file. Some items must be kept for the lawyer's own protection, and others (such as preliminary drafts) could, unexplained, place the lawyer in a bad light without helping the former client. DR 2-110(A)(2) requires a lawyer not to withdraw without delivering to the client all papers and property to which the client is entitled, a requirement designed to minimize duplication of effort and prejudice when representation changes. Generally, anything helpful to the new lawyer and not necessary for the discharged lawyer's protection should be turned over: items the client delivered (original instruments, correspondence, cancelled checks); correspondence the lawyer generated during the representation and replies received; instruments submitted by the adversary or drawn and submitted to the adversary (if not subject to a return obligation); and completed briefs or memoranda actually filed or ready for use. The lawyer's notes made for his own future reference, and similar things not representing completed work product, need not be turned over, and the lawyer may keep copies of what he turns over. No animosity should color the lawyer's actions, and he should deal courteously with fellow lawyers (EC 7-28). Whether or not the lawyer has been paid does not alter the duty; the lawyer's recourse for unpaid fees is to sue, not to withhold the client's papers (Ethics Opinion 559; see also Ethics Opinions 7 and 725).

Currency note

This opinion was issued in 1974 under North Carolina's former Code of Professional Responsibility (the DR/EC framework), before the State Bar replaced the Code with the Rules of Professional Conduct (adopted 1985) and before the 2003 revisions to those Rules. The provision it applied (DR 2-110 on withdrawal and surrender of papers) corresponds to today's Model Rule 1.16. 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: Must a discharged lawyer turn over his entire file?

A: No. The opinion concluded the lawyer must deliver the papers and property the client is entitled to, and generally anything helpful to the new lawyer, but not his own notes and uncompleted work product.

Q: What clearly must be turned over?

A: The opinion concluded items the client delivered, correspondence generated during the representation and replies, instruments exchanged with the adversary, and completed briefs or memoranda filed or ready for use should be turned over.

Q: Can the lawyer withhold the file until paid?

A: No. The opinion concluded that nonpayment does not alter the duty; the lawyer's recourse is to sue for fees, not to withhold the client's papers (Ethics Opinion 559).

Background and rules framework

The opinion applied the former North Carolina DR 2-110(A)(2) on withdrawal and the surrender of client papers (corresponding to today's Model Rule 1.16), with EC 7-28 on courteous dealings. The analysis turned on distinguishing materials the client is entitled to (and items helpful to successor counsel) from the lawyer's protective notes and uncompleted work product.

Citations and references

Rules of Professional Conduct:

• North Carolina DR 2-110(A)(2); EC 7-28 (Code of Professional Responsibility; withdrawal and surrender of papers)
• MR 1.16 (declining or terminating representation; surrender of papers)

Other opinions cited:

• North Carolina Ethics Opinions 559, 7, and 725

See also

• NC Ethics Op. RPC 16: files of a deceased lawyer
• NC Ethics Op. RPC 8: insurer counsel for an uninsured motorist

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/cpr-3/

Original opinion text

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

Inquiry:

Dated August 16, 1973.

Client discharged his lawyer and employed another lawyer. The discharged lawyer has been requested to "turn over the file" to the new lawyer. The discharged lawyer responded that he would be happy to turn over any papers belonging to the client but refused to turn over "any portion of the file which was his work product." What is the obligation of the discharged lawyer with respect to turning over the file?

Opinion:

A discharged lawyer or a lawyer otherwise withdrawing from representation of a client is not obligated to turn over his entire file to his client or to his client's new lawyer. Many things in the file may be necessary to be kept for the lawyer's own protection. Other things may represent abortive efforts such as preliminary drafts of legal instruments or other preliminary things which, unexplained, could place a lawyer in a bad light without furthering the interest of his former client.

DR 2-110A(2) requires that a lawyer shall not withdraw from employment without "delivering to client all papers and property to which the client is entitled . . ." This and other requirements of DR 2-110 are designed to minimize the duplication of legal effort and prejudice to a client when there is a change of representation. Presumably, a discharged lawyer, whether he withdraws voluntarily or is discharged, is paid for his services. If not, he has legal redress.

Generally, anything in the file which would be helpful to the new lawyer and not necessary for the protection of the discharged lawyer should be turned over. It is impossible to catalogue everything in a file which should be turned over to the client or the new lawyer. Things which clearly should be turned over are papers and other things delivered to the discharged lawyer by the client such as original instruments, correspondence, and cancelled checks. In addition, the discharged lawyer should turn over correspondence generated by him during the period of representation, and replies received by him to such correspondence relating to the representation; instruments submitted to him by his adversary or the adversary's lawyer (if he is not under obligation to return them), instruments he has drawn and which have been submitted by him to his adversary or his adversary's lawyer, completed briefs, or other legal memoranda actually filed and submitted to the Court or which have been completed and are ready for use. Such things are likely to be helpful to the new lawyer in the further handling of the matter, either as evidence or otherwise. The discharged lawyer's notes made for his own future reference and study and similar things not representing a completed work product need not be turned over. It is not improper for the discharged lawyer to retain copies of anything that is turned over.

No animosity toward the former client should color the discharged lawyer's actions. He should also be mindful of the consideration and courteous dealings with his fellow lawyers enjoined by EC 7-28.

The inquiry does not state whether or not the discharged lawyer has been paid for his services. Whether he has been paid or not does not alter the discharged lawyer's duty. "The only recourse an attorney has against a client who refuses to pay fees is to institute action against the client to recover the amount due. The attorney has neither the ethical nor the legal right to withhold the client's papers." Ethics Opinion 559. See also Ethics Opinions 7 and 725.