When an associate leaves a law firm, may the associate keep representing the firm's clients, and who is entitled to the client files?

Plain-English summary

The committee considered whether a former associate of a law firm could represent clients of that firm after departing, and how access to the client files should be handled. It concluded that representing the former firm's clients is not improper provided the clients agree. Both the former associate and the former firm may properly have access to the client files maintained by the firm, with the associate's access limited to the clients who will continue to be represented by the associate.

On the files themselves, the committee concluded that who gets the original and who gets a copy is not an ethical question. The client has a paramount right to the information in the files, while the lawyer who maintains them has a property right in the physical files, except for the client's own papers. Anything the client entrusted to the lawyer should be returned in original form; other material may be copied and the client billed for reasonable costs.

Currency note

The committee's Editor's Note records that this opinion was overruled by LEO 1132. This opinion was issued in 1981, under Virginia's former Code of Professional Responsibility, before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000. The committee note states that Rule 1.16(e) now governs a lawyer's duty to provide files to a former client. Subsequent rule amendments and the later opinion 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 Treat this page as historical context, not current guidance.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: Could a departing associate keep representing the firm's clients?

A: Under this 1981 opinion, yes, provided the clients agreed to continue with the associate.

Q: Who was entitled to the original client file?

A: The committee treated the original-versus-copy question as not an ethical one. The client had a paramount right to the information, the lawyer had a property right in the physical files, and the client's own papers were to be returned in original form.

Q: Is this opinion still good guidance?

A: No. The committee's Editor's Note records that LEO 431 was overruled by LEO 1132, and current Rule 1.16(e) governs the duty to provide files to a former client.

Background and rules framework

The opinion applied the former Code's confidentiality and file provisions, DR 4-101(B) and (E), EC 4-6, and DR 2-108(D). The committee note maps the file-return question onto current Virginia Rule 1.16(e), which corresponds to ABA Model Rule 1.16 on declining or terminating representation and the return of client materials.

Citations and references

Rules of Professional Conduct:

• DR 4-101(B) and (E) (confidences and secrets) (former Code)
• EC 4-6 (former Code)
• DR 2-108(D) (former Code)
• Virginia Rule 1.16(e) (duty to provide files to a former client) (cited in the committee note)
• ABA Model Rule 1.16 (declining or terminating representation)

Other opinions cited:

• LEO 1132: overrules LEO 431 (per the Editor's Note)

See also

• VA LEO 1357: Refusing to Let a Client See the File Is Presumptively Prejudicial
• VA LEO 465: Retaining Lien on Client Property for Unpaid Fees

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/0431.pdf

Original opinion text

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

LEGAL ETHICS OPINION 431

ASSOCIATE OF LAW FIRM – CLIENT’S FILES.

It is not improper for a former associate of a law firm to represent clients of his former firm, provided they agree. Both the former associate and his former firm may properly have access to client files maintained by the former firm, provided that the former associate's access is limited to clients who will continue to be represented by him. The question of who gets the original file and who gets a copy is not an ethical one. The client has a paramount right to the information in the files, but certainly the lawyer who maintains them has a property right in the physical files themselves, except to the extent that the client's own papers are included therein. Anything the client has entrusted to the lawyer should be returned in original form, but other material may be copied, and the client billed for reasonable costs thereof. [See II: DR:4-101(B) and (E), EC:4-6 and DR:2-108(D).]

Committee Opinion
October 16, 1981

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

Editor’s Note. – Overruled by L E Op. No. 1132.