Can a lawyer require the client to pay copying costs for the file's work product before releasing the file?

Plain-English summary

A firm represented a governmental entity investigating a corporation. The corporation authorized its former legal counsel to release its entire file, including books, records, notes, memoranda, and attorney work product, to the governmental entity, and waived the attorney-client privilege. The former counsel refused to release the work-product documents unless copies were made for the firm at the corporation's or the entity's expense. The firm asked whether LE Op. 431 still held that charging the client copying costs on relinquishment of the file is permissible where the copy is made for the attorney's benefit, and, if so, whether a client already billed for photocopying could be charged again.

The committee identified DR 2-108(D) as controlling, reading "applicable law" there to refer to an attorney's lien for legal fees owed, and proceeded on the assumption that no fees were owed, so no statutory or common-law possessory lien arose. It concluded that, besides the items the client originally provided (which remain the client's property), the work product was purchased by the client through payment of legal fees, so the client owns the work product whether in documentary form or as the lawyer's applied expertise (citing Scroggins v. Powell, Goldstein, Frazier & Murphy, 15 B.R. 232 (Bankr. N.D. Ga. 1981), rev'd on other grounds, 25 B.R. 729 (N.D. Ga. 1982)).

Because the file is the former client's property, the committee opined it must be surrendered to the client or designee, and that absent a prior agreement to the contrary, it is improper to condition release on payment of copying fees where the copies are for the attorney's use; the attorney may retain copies, but the creation and cost of those copies are the attorney's responsibility (citing District of Columbia Bar Opinion No. 168). The committee added that former counsel should remind the client that once the file is released to a third party without copies, neither will have it available, and may require the client's acknowledgment of that hazard or, with the client's approval, make copies and charge the client; but even then, conditioning release on payment of copying charges is improper absent a prior agreement, and the lawyer may pursue the usual legal remedies for unpaid charges. It did not reach the second question.

Currency note

This opinion was issued in 1989, under Virginia's former Code of Professional Responsibility (the disciplinary rule it cites), before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000. As the committee note observes, current Rule 1.16(e) governs a lawyer's duty to provide files to a former client. 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 a lawyer make the client pay copying costs before releasing the file?

A: Under this 1989 opinion, where no fees are owed, no. The committee concluded that absent a prior agreement, it is improper to condition release on payment of copying fees where the copies are made for the attorney's benefit.

Q: Who owns the attorney work product in the file?

A: The committee concluded the client owns the work product, reasoning that the client purchased it by paying legal fees, in addition to owning the documents the client originally provided.

Q: Can the lawyer keep a copy of the file?

A: Yes. The committee said the attorney may retain copies of the materials delivered to the client, but the creation and cost of those copies are the attorney's responsibility.

Background and rules framework

The opinion interpreted former Virginia DR 2-108(D) (delivering papers and property to which the client is entitled on termination, with retention to the extent permitted by applicable law), reading "applicable law" to mean an attorney's fee lien. The duty to provide a former client's file is now within Virginia Rule 1.16(e).

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 2-108(D) (delivering the client's papers and property on termination)
• ABA Model Rule 1.16 (declining or terminating representation; returning the file)

Cases:

• Scroggins v. Powell, Goldstein, Frazier & Murphy, 15 B.R. 232 (Bankr. N.D. Ga. 1981), rev'd on other grounds, 25 B.R. 729 (N.D. Ga. 1982), client ownership of work product.

Other opinions cited:

• Virginia LE Op. 431: charging copying costs on relinquishment of the file.
• District of Columbia Bar Opinion No. 168: file release and copying costs.

See also

• VA LEO 1366: The Whole File Belongs to the Client
• VA LEO 1176: Holding a Client's File Until Fees Are Paid
• VA LEO 1418: Court-Appointed Counsel's File Duty
• VA LEO 1357: Letting a Client Learn What Is in the File

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1171.pdf

Original opinion text

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

Committee Opinion
February 13, 1989
LEGAL ETHICS OPINION 1171

CLIENT’S FILES: PHOTOCOPYING CHARGE FOR WORK PRODUCT AS CONDITION TO RELEASE FILE TO THE CLIENT.

Since your inquiry requested that the Committee adopt your position, it became necessary to consider overruling an earlier legal ethics opinion which the Committee does not do without full committee review and approval.

You have advised that your firm represents a governmental entity which is currently investigating a corporation pursuant to federal statutory authority. The corporation has authorized the release of its entire client file currently in the possession of the corporation's former legal counsel, including all of its books, records, and other documents, and, further, the corporation waived the attorney-client privilege for the file. After receiving written notice from the corporation to release to your client, the governmental entity, the entire client file, including notes, memoranda, and other attorney work-product, the former legal counsel refused to allow the corporation or your client to take any documents constituting work-product unless copies were made for retention by the firm, at the corporation's or your client's expense.

You have inquired as to whether the committee is still of the opinion expressed in LE Op. 431, i.e., that it is not a violation of the Virginia Code of Professional Responsibility to charge the client for copying costs upon relinquishment of the file to the client, where the purpose of creating that copy of the file is for the attorney's rather than for the client's benefit. Your second question, to be answered if the response to the first question is that attorneys may still ethically charge clients reproduction costs, is whether it is ethical to charge a client for reproducing the file if that client has already paid, through the attorney's regular billing procedure, for photocopying the documents comprising the file.

Disciplinary Rule 2-108(D) is the appropriate and controlling rule in this situation. Under that rule, the lawyer is required, upon termination of representation, to "deliver all papers and property to which the client is entitled" and he may "retain papers relating to the client to the extent permitted by applicable law." It is the opinion of the committee that the applicable law to which DR:2-108(D) presently refers is that which relates to an attorney's lien for legal fees owed by the client. Based upon the facts you have presented, the Committee's opinion is predicated on the assumption that the corporation does not have outstanding unpaid legal fees owing to its former legal counsel. Thus, the Committee assumes that no statutory or common law possessory lien arises upon which the former legal counsel may base its retention of the corporation's file.

The Committee is of the opinion that, in addition to the obvious fact that items in the file which were originally provided to the lawyer by the client continue to be the property of the client, items in the client's file which constitute attorney work-product were purchased by the client by the payment of legal fees. Thus, the client owns the attorney work-product whether in tangible, documentary form or in the intangible provision of the attorney's expertise in having applied the law to the client's fact situation during the course of the representation. Scroggins v. Powell, Goldstein, Frazier & Murphy, 15 B.R. 232, 240-241 (Bankr. N.D. Ga. 1981), rev'd on other grounds, 25 B.R. 729 (N.D. Ga. 1982). Since the file is thus the property of the [former] client, the Committee opines that it must be surrendered to the client or his designee. It is further the opinion of the Committee that, absent a prior agreement to the contrary, it is improper to condition the release of the client's file upon payment of copying fees where the copies will be made for the use of the attorney. The attorney may retain copies of the materials delivered to the client; however, the creation and cost of the copies are the attorney's responsibilities. See District of Columbia Bar Opinion No. 168 (April 15, 1986).

The general provision of DR:2-108(D) requires that, upon termination of representation, the lawyer must take reasonable steps for the continued protection of a client's interests (emphasis added). The client in this situation should be reminded by his former counsel that once the file is released to the third party with no copies having been made, neither the client nor the counsel will then have any of the client's file available. The former counsel may require the former client's acknowledgment of the hazards involved or, with the client's approval, may make the necessary copies and charge the client accordingly. Even in those circumstances, the Committee is of the opinion that it is improper to condition the release of the file upon payment of copying charges, absent a prior agreement to the contrary. The lawyer may avail himself of the usual legal remedies where those charges are not paid.

Since the Committee's opinion relative to your first question is dispositive of the matter, consideration of your second question was not reached by the Committee.

Committee Opinion
February 13, 1989

Legal Ethics Committee Notes. – Rule 1.16(e) governs a lawyer’s duty to provide files to a former client.