Can a lawyer refuse to let a former client find out what is in the client's file?

Plain-English summary

The committee considered whether an attorney could refuse to let a former client find out what was in the client's file. It concluded that such a refusal is presumptively prejudicial and violates DR 2-108(D), which requires a lawyer, on termination of representation, to take reasonable steps for the continued protection of the client's interests.

The committee held that the former attorney is obligated to explain and furnish a list of the contents of the file, indicating which items involve unpaid fees and which items are the client's property (those provided originally by the client or for which no fees are owing), citing LE Op. 1101, 1124, and 1176. It added that whether any prejudice actually results to the client is a factual question for a finder of fact and therefore beyond the committee's purview.

Currency note

This opinion was issued in 1990, 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 Treat this page as historical context, not current guidance.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 simply refuse to tell a former client what is in the file?

A: Under this 1990 opinion, no. The committee held that refusing to let a former client ascertain the contents of his file is presumptively prejudicial and violates DR 2-108(D).

Q: What must the lawyer provide?

A: The committee said the lawyer must explain and furnish a list of the file's contents, indicating which items involve unpaid fees and which are the client's property (items the client provided or for which no fees are owing).

Background and rules framework

The opinion interpreted former Virginia DR 2-108(D) (reasonable steps to protect the client's interests on termination, including delivering papers and property to which the client is entitled). A lawyer's duty to provide the file to a former client is now Virginia Rule 1.16(e), as the committee note states.

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 2-108(D) (Code of Professional Responsibility)
• ABA Model Rule 1.16 (declining or terminating representation; returning the file)

Other opinions cited:

• Virginia LE Op. 1101; LE Op. 1124; LE Op. 1176: file contents, lien items, and the client's property.

See also

• VA LEO 1366: The Whole File Belongs to the Client
• VA LEO 1332: Conduct on Law-Firm Dissolution
• VA LEO 1418: Court-Appointed Counsel's File Duty
• VA LEO 1485: Conditioning File Return on a Receipt

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1357.pdf

Original opinion text

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

Committee Opinion
June 7, 1990
LEGAL ETHICS OPINION 1357

FILES – TERMINATION/WITHDRAWAL
OF REPRESENTATION: REFUSING TO
ALLOW CLIENT TO ASCERTAIN THE
CONTENT OF HIS FILE.

The Committee has considered the facts you have presented and is of the opinion that
an attorney's refusal to allow a former client to ascertain the contents of that client's file is
presumptively prejudicial and violative of DR:2-108(D) which requires a lawyer to take
reasonable steps for the continued protection of a client's interests upon termination of
representation. It is the Committee's view that the client's former attorney is obligated to
explain and furnish a list of the contents of the file indicating which items involve unpaid
fees and which items are the client's property, i.e., either provided originally by the
client or for which no fees are owing. (See LE Op. 1101 (September 29, 1989); LE Op.
1124 (September 27, 1989, August 12, 1988); and LE Op. 1176 (December 19, 1988))
The Committee further believes that a determination as to any prejudice to the client
which actually results is a factual question requiring a decision by a finder of fact. Since
the Committee is not constituted to resolve questions of fact, such determination is
beyond its purview.
Committee Opinion
June 7, 1990
Legal Ethics Committee Notes. – Rule 1.16(e) governs a lawyer’s duty to provide
files to former client.