When a custody case ends, may the lawyer give the client copies of Department of Social Services home studies in the file, including one stamped confidential for court use only?

Plain-English summary

After a custody case between a mother and father ended, the client asked Attorney A for the entire file except work product. The file included two home studies prepared by the Department of Social Services, which had performed them at the court's request on one or both attorneys' suggestion; at least one study was stamped confidential and for court use only. The question was whether the lawyer could ethically give the client copies of the home studies on request.

The opinion concluded yes, unless the judge orders otherwise. It relied on DR 2-110(A)(2) and EC 2-32, which require a discharged lawyer to turn over to the client all papers and property to which the client is entitled. While some DSS reports may be made confidential by law, the opinion reasoned that home studies done at the court's request in a private custody case do not appear to be made confidential by any statute. Absent a court order or statute to the contrary, the lawyer should release the studies, since they are not the lawyer's work product and would be relevant and helpful to any future proceeding in which the client is represented by other counsel or appears pro se.

Currency note

This opinion was issued in 1982 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 file-return principles it applied correspond to today's Model Rule 1.16(d). 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 Treat this page as historical context, not current guidance.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: Can the client get DSS home studies from the custody file?

A: Yes, unless a judge orders otherwise. The opinion concluded a discharged lawyer must turn over papers the client is entitled to, and these studies were not made confidential by statute.

Q: Does the "confidential, for court use only" stamp block release?

A: Not by itself. The opinion reasoned that home studies done at the court's request in a private custody case did not appear to be made confidential by any statute, so absent a court order the lawyer should release them.

Q: Are the home studies the lawyer's work product?

A: No. The opinion noted they are not the lawyer's work product and would be relevant and helpful to future proceedings, which supports releasing them to the client.

Background and rules framework

The opinion applied DR 2-110(A)(2) and EC 2-32 of the former Code of Professional Responsibility, the predecessors to today's Model Rule 1.16(d) on returning the client's papers and property when the representation ends. The analysis turned on the absence of any statute or court order making these court-requested private-custody home studies confidential.

Citations and references

Rules of Professional Conduct:

• North Carolina DR 2-110(A)(2) and EC 2-32 (Code of Professional Responsibility; return of client papers on withdrawal or discharge)
• MR 1.16(d) (returning client papers and property on termination)

Other opinions cited:

• North Carolina CPR 3 (the file is basically the client's; discharged lawyer must turn it over)

See also

• NC Ethics Op. CPR 3: discharged lawyer's duty to turn over the file
• NC Ethics Op. CPR 315: turning a State-supplied transcript over to the former client

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/cpr-322/

Original opinion text

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

Inquiry:

Attorney A has completed a domestic case in which the mother and father sought custody of minor children. Client C has requested that Attorney A turn over to the client the entire file exclusive of work product. Part of the file includes home studies prepared by relevant Department of Social Services. The Department of Social Services was not involved in the case except to perform home studies at the request of the court upon the suggestion of one or both attorneys. At least one of the two home studies is stamped with a statement that the home study is confidential and for court use only. Client C has specifically requested copies of the two home studies in the case.

May Attorney A ethically release the home study to Client C at Client C's request?

Opinion:

Yes, unless the judge orders otherwise. DR 2-110(A) (2) and EC 2-32 require a discharged lawyer to turn over to the client all papers and property to which the client is entitled. While some reports or studies prepared by the Department of Social Services may be confidential by law, home studies done simply at the request of the court in a private custody case do not appear to be made confidential by any statute. In the absence of a court order or statute making such a report confidential, the attorney should release these studies to his client since they are not the work product of the attorney and would certainly be relevant and helpful to any future proceedings in which the client a represented by another attorney or by himself. See CPR 3.