This is not, as it may seem, a rhetorical question, though in the author's opinion it should be. The issue typically arises in one of two situations:
An attorney is discharged and the client directs that the case file be forwarded to new counsel. A dispute may involve assertion of a retaining lien if the attorney's fees have not been paid in full, or over who must bear the cost of copying the file (either to be delivered or retained) if no retaining lien is asserted, or
|2.||A potential malpractice claim has been threatened or is feared.|
R.P.C. 1.15(a) provides:
In connection with a representation, a lawyer shall hold property of clients or third persons that is in a lawyer's possession separate from the lawyer's own property. (Emphasis added.)
Rule 1.15 begs the question of whether files generated in the course of representation constitute "property of clients," and if so, how much of the file is property of the client.
R.P.C. 1.16(d) states:
Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by law. (Emphasis added.)
The emphasized portions of R.P.C. 1.16(d) recognize that, generally, the right of a client to receive its file is subordinate to an attorney's right to assert a retaining lien(1) against the file if any portion of the attorney's fees and costs remain unpaid.
Discussion of attorneys' liens is beyond the scope of this article. However, regardless of whether an attorney's lien can or cannot be validly asserted, R.P.C. 1.16(d) also begs the question "who owns the client file?" What are the "papers to which the client is entitled" and the "papers relating to the client"? What does "ownership" entail? Possession? Copyright ownership?(2) A free copy of the file upon request?
These are not purely academic issues. Assuming that an attorney will always want to keep at least a copy of each of his client's files for future reference or potential defense, the cost of copying all the files of an active client of many years can easily mount to thousands of dollars. And, if the client has expressed or the attorney suspects the file is to scrutinized for a potential malpractice claim, the interest of self-preservation may tempt even the most ethical attorney to cull the file of internal memoranda, notes and other materials.
What must the attorney surrender? Can the attorney assert a "work-product" privilege against the client? And who must foot the bill for copying? Although the answers to these questions is not without debate, the answers provided by the better reasoned cases are everything, no and it depends. These would also seem to be the answers under Colorado law, although the issue has not been definitively answered by Colorado appellate courts or Colorado Federal courts.
Several Colorado cases have relied upon R.P.C. 1.16(d) as grounds for disciplining attorneys for failing to return a client's file where no valid attorney's lien existed. See, e.g., People v. Kuntz, 908 P.2d 1110 (Colo. 1996); People v. Jamrozek, 914 P.2d 350 (Colo. 1996); People v. Sigley, 917 P.2d 1253 (Colo. 1996); People v. Crews, 901 P.2d 472 (Colo. 1995); and People v. Tucker, 904 P.2d 1321 (Colo. 1995).
Case law and ethics opinions from other jurisdictions reflect divergent schools of thought regarding issues of ownership and control of client files. Some of these differences are attributable to specific statutory provisions addressing these issues. See, e.g., Neeb v. Superior Court (Law Offices of Thomas J. O'Keefe, Inc.), 214 Cal. App. 3d 693, 262 Cal. Rptr. 887 (4th Dist. 1968) (opining that under the California Code of Civil Procedure an attorney may assert a work-product privilege against the attorney's client regarding materials created during the representation of the client). But see Platt v. Superior Court, 214 Cal. App. 3d 779, 263 Cal. Rptr. 32 (4th Dist 1989) (excoriating Neeb's statutory analysis).(3) There is general agreement that, in the absence of a valid attorney's lien, upon request an attorney must deliver to a client original documents provided to the attorney by the client, obtained by the attorney for the client and the finished work-product of the representation. There is, however, divergent opinion regarding (1) whether an attorney must deliver all documents generated during the course of representation, (2) whether an attorney may assert a work-product privilege against his or her own client regarding documents created during the representation which would be work-product vis-a-vis third parties (3) whether the client or the attorney must bear the expense of making any photocopies in connection with such a request and (4) whether the client is entitled to the "original" file or only photocopies of the file.
Generally speaking, two schools of thought exist. One school holds that the client is only entitled to original documents delivered by the client to the attorney or obtained by or prepared by the attorney for the client as the object of the representation. See, e.g. ABA Informal Ethics Op. 1376 (Feb. 18, 1977) (decided under DR 9-102(B)(4)). This school would allow attorneys to withhold their notes, research, and other materials which might be considered work-product vis-a-vis third parties, either on the theory that such materials do not constitute part of the "client file," or that an attorney may assert a work-product defense against a client with regard to materials created in the course of representing the client. Id. ("[I]n the Committee's view, the lawyer need not deliver his internal notes and memos which have been generated primarily for his own purposes in working on the client's problem." ) Accord Neeb v. Superior Court (Law Office of Thomas J. O'Keefe, Inc.), 214 Cal. App. 3d 693, 262 Cal. Rptr. 887 (4th Dist. 1989) (relying on California Code); Corrigan v. Armstrong, Teasdale, Schlafly, Davis & Dicus, 824 S.W.2d 92 (Mo. App. 1992) (client has only intangible personal property right of access to information in files and not a possessory interest in the files); Minnesota Lawyers Professional Responsibility Board Opinion 13 (June 15, 1989) (lawyer may not condition the return of client files or property on payment of copying costs, but excluded from the definition of "client files, papers and property" are unfiled, unsent and unexecuted materials for which the client has not paid a fee).
The other school of opinion holds that, insofar as an attorney is an agent and fiduciary of the client, the attorney may withhold nothing from the client, absent a valid attorney's lien. This school generally holds that the purpose for the client's request for its file is immaterial, that the client is entitled to its complete original file, and that the work-product privilege cannot be invoked against an attorney's own client regarding materials prepared during the course of the representation. See, e.g., In re Grand Jury Proceedings, 727 F.2d 941 (10th Cir. 1984) (files belong to the client and are held by attorney in representative capacity, therefore attorney cannot invoke Fifth Amendment privilege); In the Matter of Kaleidoscope, Inc., 15 B.R. 232 (Bkrtcy. D. Ga. 1981) (attorney is agent of client, may not refuse to turn over any portion of client file, and may not assert work-product privilege against client), modified on other grounds, 25 B.R. 729 (D. Ga. 1982) (reversing order and holding that the bankruptcy court should have abstained from determining questions relating to property interests in client files). Accord Clark v. Milam, 847 F. Supp. 424, 426 (D. W.Va. 1994); Gottlieb v. Wiles, 143 F.R.D. 241, 247 (D. Colo. 1992); Martin v. Valley Nat. Bank of Arizona, 140 F.R.D. 291 (S.D.N.Y. 1991); and Resolution Trust Corp. v. H---, P.C., 128 F.R.D. 647 (N.D. Tex. 1989).
The clearest pronouncements on these issues have been made by the courts of Texas. The basis for these opinions, however, has equal force under Colorado law.
In Resolution Trust Corp. v. H---, the court concluded that entire contents of a client's file belong to the client, and that neither the attorney-client privilege nor work-product doctrines were applicable. Relying upon a simple but compelling principal-agent analysis, the court was particularly critical of the attorney's suggestion that the work-product doctrine permitted it to retain possession of certain documents :
The work-product doctrine is equally inapplicable. The doctrine protects materials that are not covered by the attorney-client privilege but are prepared in anticipation of litigation and contain material revealing the attorney's thoughts or strategies. . . . None of the materials at issue here were prepared in anticipation of litigation, unless H--- claims that it created material in anticipation of litigation with its own client. Such a statement would be an admission of a breach of the fiduciary duty owed by H--- to Caprock, and it could hardly serve as a basis for this Court to allow H--- to prohibit Plaintiff from obtaining these documents. (Citations omitted.)
128 F.R.D. at 649. The court also cited with approval Iowa State Bar Ethics Opinion No. 87-21 (1988) ("The files belong to the client and he has the right to direct where they shall be sent.").
A similar result was reached by the Tenth Circuit under New Mexico law:
[T]he attorney in this case holds the client file in a representative capacity for the client. Any ownership rights which inure in the file belong to the client who has presumably paid for the professional services and preparations made by the attorney. . . . So far as we can determine, it is a general principle of law that client files belong to the client and indeed the court may order them surrendered to the client or another attorney on the request of the client subject only to the attorney's right to be protected in receiving compensation from the client for work done. . . . The attorney's interest is only that of a retaining lien and his interest at best is a pecuniary one, not an interest of ownership, nor privacy. (Citations and footnotes omitted.)
In re Grand Jury Proceedings, 727 F.2d at 944-45. In addition to rejecting attorney-client and work-product objections, the court further rejected the attorney's invocation of the Fifth Amendment. Accord In re Investment Bankers, Inc., 30 B.R. 883 (Bkrtcy. Colo. 1983) ("[T]he Trustee is the successor in interest to the debtor, . . . , and has a right to the production of the files and disclosure of all information pertinent to the representation."); Martin v. Balley Nat. Bank of Arizona, 140 F.R.D. 291, 320 (S.D.N.Y. 1991); Maxwell v. Florida, 479 U.S. 972, 976 n.2 (1986) (Marshall, J., dissenting from denial of writ of certiorari).
Only a few courts and ethics bodies have considered the issue of who must bear the cost of photocopying client files. Some take the view that this is strictly a matter of contract or course of dealings. "The lawyer should return all items which are the client's property without charge. Whether the lawyer charges for copies of other items or for 'culling the file' is not in the Committee's view a question of ethics, but a matter of the lawyer's usual and customary practice or, if not, a matter of his agreement with his client." ABA Informal Op. 1376. However, most fee agreements are silent on this issue. Other ethics bodies take the view that "[a] lawyer may not condition the return of client files . . . on payment of copying costs." Minnesota Lawyers Professional Responsibility Board Ethics Op. 13 (June 15, 1989). Not surprisingly, this view is endorsed by those courts which consider the client files to be the exclusive property of the client:
The one remaining contention is that Defendant [law firm] already delivered to [client], during the course of its representation, virtually all of the documents contained in the current files. Defendant [law firm] asserts that photocopying the entire file would cost between $70,000 and $80,000, an unfair burden when Plaintiff is simply trying to fill in the gaps in [client's] own carelessly-kept files.
This argument is a red herring. First, Defendant is not obligated to copy the files, only to turn them over. Second, most, if not all, of the documents in Defendant's files were copied at [client's] expense from the originals given to [client]. Since the files were paid for by [client], they belong to Plaintiff. Any documents Defendant [law firm] wishes to keep may be copied at its own expense. And while Defendant [law firm] may anticipate that much of the file will be needed if litigation over its representation ensues, Defendant is entitled to receive copies of the relevant documents through discovery.
Resolution Trust Corp. v. H--, 128 F.R.D. at 650. See also In the Matter of Van Baalen, 123 Ariz. 82, 597 P.2d 985 (1979) (attorney publicly censured for refusing client access to file until a $30 fee for copying was paid).
In the author's opinion, the better rule is that, generally, the cost of file copying should be born by the attorney. There may be circumstances under which this general rule might be modified. For example, if more than one client has a legitimate claim to the file, the attorney has a duty to preserve the fill for all clients, and should not be required to shoulder the file's copying cost more than once. In these instances, providing each client an opportunity to review and copy the entire file should be adequate, absent unanimous direction from all clients as to the disposition of the file. However, the fact that the attorney has previously, during the course of a matter, routinely provided copies of all correspondence and pleadings to the client, should not allow the attorney to shift the burden of copying costs to the client, particularly if, as is typical, the client has been charged for and paid for those copies in the past.
Without doubt, the more conservative course is to err on the side of disclosure and for the attorney to absorb the cost of copying the client's file, bearing in mind that the court will hold the attorney to the highest fiduciary standard under the law.
An attorney has a lien for a general balance of compensation upon any papers of his client which have come into his possession in the course of his professional employment . . . .
Colo. Rev. Stat. 12-5-120. There are circumstances, however, where the attorney's lien must yield to the interest of the client, even if fees and costs are unpaid. See generally Colo. Bar Ass'n Ethics Opinion No. 293, Assertion of Attorney's Retaining Lien on Client's Papers (April 15, 1989) (describing 9 situations where the attorney's lien may not be recognized).
2. Although also beyond the scope of this article, it will be the rare instance where a client can claim copyright ownership to materials created by the attorney on his behalf. While the attorney is undoubtedly an agent of the client, unless he is also the client's employee, an attorney is an independent contractor. Without a written assignment or agreement making his creative output a "work made for hire," the attorney remains the copyright owner of whatever original authorship he creates.
3. Colorado statutory law expressly provides that a certified public accountant owns his or her client file, Colo. Rev. Stat. 12-2-113 (absent a contrary agreement, working papers and documents created by the accountant for a client remain the property of the accountant). There is no analogous provision regarding client files maintained by an attorney.