When a client fires a lawyer, who pays to copy the file and which papers can the lawyer keep?

Plain-English summary

Lawyer L was a shareholder, director, and longtime counsel of Corporation C. The corporation's president fired L as counsel and demanded all files and records relating to the corporation. L offered to let the corporation copy the entire contents while he retained originals of non-corporate documents; the corporation instead demanded the original files in their entirety, leaving L to make any copies he wished. The question was L's obligation regarding return of the files.

The committee framed the dispute as essentially who pays to copy the file. Rule 1.16(d) requires a discharged or withdrawing lawyer to surrender papers "to which the client is entitled," while allowing retention of papers "to the extent permitted by other law," but offers no definition of papers to which the client is entitled, and the disciplinary cases (Crosland, Palmer, Mims, Haddock, and an Anonymous Member case) do not definitively resolve ownership, though they make clear a client fired-for-cause situation entitles the client to access and to return of original materials. In the absence of agreement, the committee offered guidelines: (i) the lawyer must return materials the client provided and other originals (notes, affidavits, medical or academic records, corporate documents), keeping copies at the lawyer's expense; (ii) the lawyer must return correspondence and final work product (pleadings, legal memoranda), keeping copies but charging the client only for copying material previously provided to the client and bearing the cost of other copies; (iii) the lawyer need not provide personal-impression notes or memoranda copied to the file for the lawyer's own information from other matters; and (iv) as to other materials, the lawyer may keep copies, with the client bearing the actual cost of copying materials that do not belong to the client. Finally, a lawyer fired for cause has no retaining lien and may not require payment before delivering the file; a lawyer fired without cause may have a valid retaining lien, but only so long as retention does not prejudice the client's interests. Applying this, Lawyer L had to deliver the file but could first copy it and charge Corporation C only for copying documents previously provided to it or not belonging to the client as a matter of law, and could remove documents relating to other clients placed in the file for his own information.

Currency note

This opinion was issued in 1992, before the South Carolina Bar's adoption of the 2005 revisions to the Rules of Professional Conduct. 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: Who pays to copy the file when a client fires the lawyer?

A: The committee concluded the lawyer may charge the client only for copying papers previously provided to the client and papers that do not belong to the client as a matter of law; the lawyer bears the cost of other copies.

Q: What must the fired lawyer return?

A: Materials the client provided and other originals (such as corporate documents), plus correspondence and final work product like pleadings and memoranda. The committee said the lawyer keeps copies, generally at the lawyer's expense.

Q: Can the lawyer hold the file until paid?

A: Not if fired for cause; the committee said such a lawyer has no retaining lien and may not require payment before delivery. A lawyer fired without cause may have a valid retaining lien, but only so long as retention does not prejudice the client.

Background and rules framework

The opinion applied Rule 1.16(d) (surrender of papers and property on termination), which corresponds to like-numbered Model Rule 1.16. The rule requires surrendering papers to which the client is entitled while permitting retention as allowed by other law, and the committee supplied guidelines because neither the rule nor the case law defines ownership precisely.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.16(d) / Model Rule 1.16(d): on termination, a lawyer must surrender papers and property to which the client is entitled, and may retain papers to the extent permitted by other law.

Cases:

• In re Crosland, 270 S.C. 546, 243 S.E.2d 198 (1978); In re Palmer, 289 S.C. 264, 346 S.E.2d 23 (1986); In re Mims, 280 S.C. 188, 311 S.E.2d 926 (1984); In re Haddock, 283 S.C. 116, 321 S.E.2d 601 (1984); In re an Anonymous Member of the South Carolina Bar, 287 S.C. 250, 335 S.E.2d 803 (1985).

Other opinions cited:

• SC Bar Advisory Opinions 92-19.

See also

• SC Bar Ethics Op. 93-30: Retaining Lien on a Client File
• SC Bar Ethics Op. 92-40: Disclosing an Insurer Overpayment
• SC Bar Ethics Op. 93-12: Keeping a Non-Refundable Retainer

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-92-37/

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 92-37

Lawyer L is a shareholder and director of Corporation C. Lawyer L also has served as counsel for Corporation C from its creation. P, the president of Corporation C, fired Lawyer L as counsel, apparently believing that L had a conflict of interest. P subsequently demanded that L return all files and records held by L that relate to Corporation C., Lawyer L has offered to make available the files in his possession, allowing Corporation C to make copies of the entire contents. Corporation C would retain any original corporate documents, with copies returned to Lawyer L. All other documents in the files, would be returned to L, with copies retained by Corporation C.

Corporation C has demanded that Lawyer L make any copies he wishes to retain and provide the original files to the corporation in their entirety.

Question:
What is the obligation of Lawyer L with regard to the return of files relating to Corporation C?

Summary:
Lawyer L should deliver the file to Corporation C as requested. However, Lawyer L may first copy the file and charge Corporation C only for the actual cost of copying any documents in the file that previously had been provided to the corporation and any other documents that do not belong to the client as a matter of law. Lawyer L also may remove from the file prior to delivery any documents relating to other clients that had been placed in the file simply as information for the lawyer.

Opinion:
The handling of client files at the termination of a representation is an important issue both to the client that wishes to provide information to new counsel and to the lawyer who may desire, for various reasons, to maintain copies of the file. In the scenario presented, the question appears to be essentially one of who must pay the cost of copying the file.

The Rules of Professional Conduct provide only that when a lawyer is dismissed or withdraws from the representation of a client, the lawyer must surrender "papers and property to which the client is entitled" although the lawyer may "retain papers relating to the client to the extent permitted by other law." Rule 1.16(d). The rule offers no guidance as to the definition of papers "to which the client is entitled." The few disciplinary cases touching on the issue do not definitively resolve the question. In each case the lawyer was alleged to have either mishandled or neglected the client's matter. The Court in In re Crosland, 270 S.C. 546, 243 S.E.2d 198 (1978), and in In re Palmer, 289 S.C. 264, 346 S.E.2d 23 (1986), indicated that a lawyer fired for cause must return documents, including medical records, that belong to the client and are contained in the files. In In re Mims, 280 S.C. 188, 311 S.E.2d 926 (1984) and in In re Haddock, 283 S.C. 116, 321 S.E.2d 601 (1984), the Court used broader language indicating that when the lawyer was dismissed for cause the files belonged to the client and should have been returned. Also, in In re an Anonymous Member of the South Carolina Bar, 287 S.C. 250, 335 S.E.2d 803 (1985), the Court indicated that a retaining lien may be enforce unless (1) the lawyer is fired with cause or (2) retention of the file would prejudice the former client.

This Committee noted in Advisory Opinion 92-19, that given the circumstances of each of those decisions, the law is unclear as to legal ownership of client files and their contents. The decisions do make clear that, when a lawyer is fired for cause, the client should have access, upon demand, to materials in the client's files. It also seems clear under In re Crosland and In re Palmer that as client is entitled to the return of original materials provided to the lawyer and of other original materials such as promissory notes or corporate documents. However, we do not believe that the court necessarily intended by the broad language of In re Mims and In re Haddock to deem all materials that might have found their way into a file automatically to be the property of the client.

The answer as to which original papers may be retained by the lawyer and which must be turned over to the client, and ultimately the question of who bears the copying charges, depends upon the resolution of that ownership issue. In the absence of agreement otherwise between the lawyer and the client, we offer the following guidelines for handling client files upon the dismissal of a lawyer by the client.

When a lawyer is fired, the lawyer, upon request, should deliver the file to the client within a reasonable time so as not to prejudice the interests of the client. The contents of the file delivered should be determined as follows:

(i) The lawyer must return to the client any materials provided by the client to the lawyer and any other original materials, including promissory notes, affidavits, medical or academic records, or corporate documents obtained by the lawyer on behalf of the client. The lawyer may retain copies of that material at the lawyer's expense.

(ii) The lawyer must return to the client all correspondence sent or received by the lawyer on the client's behalf relating to the representation and any other material prepared in final form by the lawyer on the client's behalf during the representation, including pleadings and legal memoranda. The lawyer may retain copies of that material. The client should bear the actual expense of copying any such material previously provided to the client. The lawyer should bear the expense of other copies.

(iii) The lawyer is not required to provide notes in the file regarding the lawyer's personal impressions of the client or documents, such as memoranda, relating to similar issues in other matters handled by the lawyer that may have been copied to the file for the lawyer's own information.

(iv) As to any other materials in the file, the lawyer may retain copies thereof. The allocation of actual copying costs would depend upon the nature of the document and whether the documents belonged as a matter of law to the client. The actual cost of copying materials that do not belong to the client should be borne by the client.

A lawyer, dismissed for cause, would have no retaining lien, and may not require payment for copies prior to delivery of the file. If the lawyer is fired without cause, the lawyer may have a valid retaining lien that would permit the lawyer to retain the file until the client has paid its outstanding bills including the actual cost of those copies allowed to be charged to the client. The lawyer may retain the file, however, only as long as retention does not prejudice the client's interests.

Applying these guidelines in the situation presented, we believe Lawyer L must deliver the file to Corporation C as requested. However, Lawyer L may first copy the file and charge Corporation C only for the actual cost of copying any documents in the file that previously had been provided to the corporation and any other documents that do not belong to the client as a mater of law. Lawyer L also may remove from the file prior to delivery any documents relating to other clients that had been placed in the file simply as information for the lawyer.