Must court-appointed counsel turn over the entire file, including personal notes and diaries, at no cost when the client later claims ineffective assistance?

Plain-English summary

A lawyer was court-appointed to defend a criminal case through trial and appeal, supplying the client with copies of all correspondence, pleadings, briefs, and other filed documents along the way. Fearing later ineffective-assistance claims, the lawyer also kept a diary of timely observations during the case. After exhausting his remedies, the client filed a writ alleging ineffective assistance and demanded the originals of all documents at no cost, including the lawyer's notes and diaries. The committee was asked whether appointed counsel had to provide all documents (including the diary), whether the cost could be charged to the defendant, and whether originals rather than copies had to be produced.

The controlling rule was DR 2-108(D): on termination, a lawyer must take reasonable steps to protect the client's interests, including delivering all papers and property to which the client is entitled, while retaining papers to the extent permitted by applicable law. Drawing on its prior treatment of "work product" (LE Op. 1366), the committee explained that the legal definition of work product is inapposite to delivering a client's file; for ownership purposes, where no fees are outstanding, "work product" includes the attorney's notes, internal memoranda, and drafts, and that ownership holds regardless of whether copies were earlier given to the client.

The committee held that if the requested materials are generically related to the lawyer's practice (for example, a diary that logs activities across all clients), they are not part of any specific client's file and need be provided only if discovery rules require. If the diary was separate and germane only to that client, or the materials were dictated or prepared for the client's specific case, they must be provided. On cost, because it is improper to condition release of a file on payment of copying charges absent a prior agreement (LE Op. 1171), and because all costs of a court appointment are borne by the Commonwealth, the committee opined that no production costs could be charged to the defendant. Whether originals rather than copies must be provided required a legal determination under applicable discovery and evidentiary rules and was beyond the committee's authority.

Currency note

This opinion was issued in 1991, 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: Must appointed counsel hand over a personal diary kept during the case?

A: It depends on what the diary is. Under this 1991 opinion, a diary kept as a general log of activities across all the lawyer's clients is not part of any one client's file and need only be produced if discovery rules require; but a diary separate and germane only to the specific client, or materials prepared for that client's case, must be provided.

Q: Can the appointed lawyer charge the defendant for copying the file?

A: No. The committee held it improper to condition release of a file on copying charges absent a prior agreement, and because a court appointment is funded by the Commonwealth, no production costs could be charged to the defendant.

Q: Does the lawyer have to give the client originals rather than copies?

A: The committee did not answer that. It said whether originals must be produced is a legal determination under applicable discovery and evidentiary rules and is beyond the committee's authority.

Background and rules framework

The opinion interpreted former Virginia DR 2-108(D) (delivery of papers and property on termination of representation). A lawyer's duty to return the file to a former client is now in 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. 1366: definition of "work product" and ownership of the client's file.
• Virginia LE Op. 1171: improper to condition file release on payment of copying charges absent a prior agreement.

See also

• VA LEO 1485: Conditioning File Return on a Receipt
• VA LEO 1519: Unsigned Will of a Deceased Client
• VA LEO 1664: Archiving Closed Client Files
• VA LEO 1818: Electronic-Only Client Files

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1418.pdf

Original opinion text

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

Committee Opinion
May 14, 1991
LEGAL ETHICS OPINION 1418

FILES: CLIENT PROPERTY –
CONTENTS OF FILE.

You have indicated that an attorney was court-appointed to represent an individual in a
criminal case. You advise that, throughout the presentation of the case and appeal
through the state court system, the criminal defendant was supplied with copies of all
correspondence, pleadings, briefs, and other documents that had been prepared and filed
in the case. Simultaneously, the attorney, fearful of possible allegations of ineffective
assistance of counsel and in anticipation of possible further litigation, maintained a diary
which set forth certain observations in a timely manner during the course of the case.
Furthermore, you indicate that the client has now exhausted all legal remedies and has
filed a writ alleging, among other things, ineffective assistance of counsel. The client now
asks that the former appointed counsel provide him with the original of all the documents
at no cost, and include among his demands, that the attorney produce any notes or diaries
maintained by the attorney.
You have asked the Committee to opine, under the facts you have provided, (1)
whether the court-appointed counsel, after the conclusion of the case-in-chief, is required
to provide to the criminal defendant, upon demand, all documents, including diaries or
memoranda prepared in anticipation of possible ineffective assistance of counsel
allegations; (2) whether the cost of producing the documents can be charged to the
defendant; and (3) whether the documents provided must be the originals.
The appropriate and controlling disciplinary rule related to your inquiry is DR:2-108(D)
which provides, in pertinent part, that upon termination of representation, a lawyer shall
take reasonable steps for the continued protection of a client's interests, including
delivering all papers and property to which the client is entitled while retaining papers
relating to the client to the extent permitted by applicable law.
The Committee has earlier opined that any legal definition of "work product", as
applied in the Rules of Evidence or elsewhere in a legal context, is inapposite to the
question of the delivery of the contents of a client's file to the client. The Committee
indicated that, rather, "work product" refers to all materials prepared or collected by the
attorney, or at the attorney's direction, in relation to any legal services for which the client
engaged the attorney or the law firm over the entire period of the provision of such
services. Furthermore, the Committee went on to opine that, in relation to the issue of
ownership of a client's file, where no fees are outstanding, "work product" includes
attorney's notes, internal memoranda and multiple drafts, and any other documents which
lead to final documents or which resulted in advice given as to a particular matter. The
Committee found that such ownership of the file was irrespective of any earlier provision
of copies to the client. (See LE Op. 1366.)
Thus, with regard to the first question you raise, the Committee is of the opinion that, if
the materials requested are generically related to the attorney's practice, e.g., if the diary

Committee Opinion
May 14, 1991
referenced is maintained as a log of activities conducted with or on behalf of all the
attorney's clients, such materials would not be part of any specific client's file. Therefore,
those materials would need to be provided to the client only if applicable rules of
discovery require and if the appropriate procedures have been followed. If, however, the
diary referenced was separate and germane only to the specific client, or if the materials
were dictated or prepared in relation to the client's specific case, they must be provided
to the client who requests them.
With regard to the question related to costs of producing the documents, the Committee
has earlier opined that it is improper for an attorney to condition the release of a client's
file upon payment of copying charges, where the copies are for the benefit of either the
attorney or the client, absent a prior agreement to the contrary. (See LE Op. 1171.) The
Committee is of the opinion that, in the facts you present, where the attorney has been
court-appointed, any such agreement is not relevant since all costs would be borne by the
Commonwealth. Thus, the Committee opines that any costs incurred in the production of
any documents which must be provided to the client may not be charged to the defendant.
Finally, the Committee is of the view that your question regarding whether the
documents provided must be originals rather than copies requires a legal determination,
to be made under any applicable discovery and/or evidentiary rules, and is beyond the
scope of the Committee's authority.
Legal Ethics Committee Notes. – Rule 1.16(e) governs a lawyer’s duty to provide
files to a former client.