Opinion #187. Guidance Concerning the Contents of the Client File that the Client is Entitled to Receive

Issued by the Professional Ethics Commission

Date Issued: November 5, 2004

Question

An attorney has asked the Commission for guidance on the scope of the attorney’s obligation to provide a client with the contents of the client’s file. Specifically, the attorney has asked whether the client is entitled to receive everything that the attorney has maintained with respect to the client’s matter or whether the attorney is entitled to retain the attorney’s notes, internal research memoranda and administrative documents, and similar documents created during the course of representation.

Opinion

This question places squarely in front of us issues we left open in a footnote to a recent opinion, Number 183. See Opinion #183, n.1 (issued 1/28/04). In that Opinion, we were asked whether an attorney is “obligated to keep a paper copy of the attorney’s correspondence, if the attorney retains a copy of the correspondence in a computer or by other means of electronic storage.” Id. We answered that question in a qualified fashion. We determined that an attorney may “dispense[] with the retention of paper files in favor of computerized records,” provided that the attorney is able to do so in a manner that comports with the attorney’s obligation adequately to communicate with the client and to safeguard the client’s property. Id. at 2. The attorney who sought our opinion on file retention understood that the attorney’s correspondence was part of the client’s file. We noted in Opinion #183, however, that we had not been asked to determine whether Maine’s Code of Professional Responsibility “requires that certain categories of documents be maintained as part of the file or whether all records maintained by the attorney as part of the file . . . are property of the client.” Id. 1 n.1.

File Maintenance

To guide attorneys on the scope of their obligation to provide a client with the contents of the client’s file, we must at the outset discuss appropriate file maintenance, because an attorney can only discharge the ethical obligation to return materials to the client if the attorney has first discharged the ethical obligation to maintain the client’s file.

Although the Maine Code of Professional Responsibility does not specifically deal with the obligation of an attorney to maintain files and, accordingly, offers no guidance as to the required contents of an attorney’s file, it is inherently clear that adequate file maintenance is necessary in order for an attorney to discharge the obligation to “employ reasonable care and skill and apply the lawyer’s best judgment in the performance of professional services.” M. Bar R. 3.6(a). Files that are maintained in a comprehensive and orderly manner assist the attorney’s own preparation and enable the attorney to review relevant notes, pleadings, correspondence, and documents before important telephone calls, interviews, meetings, and court appearances. See M. Bar R. 3.6(a)(2) (requiring attorneys to handle legal matters with “preparation adequate in the circumstances”). Furthermore, well-maintained files allow another attorney to provide subsequent representation to the client without prejudicing the client’s interests. See M Bar R. 3.5(a)(2).

While we recognize that the amount of detail that any file contains will vary with the lawyer’s practice style and the nature of the representation, we believe that attorneys should be guided by a standard of reasonableness, the end result of which is that a file, whether kept electronically or in hard copy, should contain material that another attorney or the client would reasonably need to take up representation of the matter. Most of that material will be substantively related to the representation, but it could also include materials that some might deem of an administrative nature if the information contained in those materials is reasonably necessary to protect or defend the client’s interests.

Materials that Must Be Delivered To The Client

We turn next to an analysis of an attorney’s obligation to deliver the file to the client. At the outset, we revisit Opinion #74 (10/1/86), which offered attorneys some guidance on the circumstances in which they may destroy client files.[1]. We do so in order to highlight two general principles that we believe should guide attorneys in making decisions about the nature of the file documents to which the client is entitled. First, an attorney has an obligation to safeguard client property in the attorney’s possession, even after representation ceases. Second, an attorney cannot destroy a file without the client’s prior notice and consent if the file contains any information “of value” to a client.

We believe that the identification of these two principles – one dealing with client property and one dealing with valuable information – highlights an important point. We do not read Maine’s Code of Professional Responsibility to imply that all material created or maintained by an attorney necessarily becomes client property. We likewise do not take the approach, underlying a variety of formulations offered by some courts, state ethics bodies, and commentators, that attempts to condition the return of file information on categorizing the material as property belonging either to the client (which must be returned) or the attorney (which need not be returned).[2] If a particular document’s characterization as either client property or lawyer property were all that was required to determine an attorney’s obligation with respect to the file, Opinion #74 would have had no need to identify a category of “valuable property” – it could have discussed the attorney’s obligation simply by reference to Rule 3.6(e)(2)(iv), which requires a lawyer to safeguard client property and deliver client property to the client upon the client’s request. Similarly, if all material created or maintained by an attorney in the file is automatically considered client property, Opinion #74 would not have recognized that an attorney might destroy files in certain circumstances, even without client consent.

In sum, therefore, employing the two principles set out in Opinion #74, an attorney should deliver the client’s property and any material, not otherwise readily available to the client, that the attorney knows or has reason to know is or would be of value to the client. The attorney must assess value to the client in relation to the accomplishment of the services for which the attorney was retained.

Ascertaining Client Property and Valuable Information

We now offer guidance on how to ascertain what is and what is not client property and the factors that must be considered when attempting to determine what is or may be valuable information to a client.

We turn first to the category of client property. This category typically includes materials provided by the client to the attorney, whether the material has intrinsic value – i.e., money, securities, or a promissory note – or value that is more dependent upon the particular item’s relationship to the legal matter for which the client seeks advice – i.e., certain items of real evidence, documents such as tax returns and insurance policies, or the client’s own notes and research. Also included in this category is finished work product that the attorney prepared for the client, and for which the client paid, such as contracts and estate planning documents.

In evaluating the second category of documents, information valuable to the client, we begin by describing those types of documents that ordinarily need not be provided to the client because they would not be helpful to the client in achieving the result for which the client retained the attorney. Those documents would ordinarily include:

  • Time sheets and billing records.

  • Internal administrative documents such as conflict checking forms and case assignment or staffing memoranda.[3]

  • Internal memoranda that set out a lawyer’s general impressions of the client and the matter, the options for staffing or handling a case, and certain internal firm business information.

  • Drafts of documents except as noted below.

We next turn to identifying those categories of documents that ordinarily should be provided to the client.[4] They include:

  • All pleadings.

  • All correspondence.

  • Research memoranda.

  • Notes and memoranda concerning information obtained from client interviews, witness interviews, facts of the case, and communications with other parties on the matter.

  • Certain drafts of documents (e.g., where prior drafts advanced legal arguments that might still be used in the matter, or where important to show the history of negotiations or otherwise pertinent to the future understanding of the outcome of the matter[5]).

We also offer additional observations that should help guide attorney conduct, all of which suggest that the prudent course of conduct is for an attorney to err on the side of providing the client with documents, rather than culling and withholding them.

First, in order to determine what information is valuable to the client in relation to the accomplishment of the services for which the attorney was retained, the lawyer must assess the point in time when the client’s request for the file is made and any information that the lawyer has regarding the reason for the request.[6] Thus, for example, an attorney’s notes regarding potential witnesses to be interviewed in any litigated matter will be useful information before the trial, but may not be useful after the trial has concluded and the witness’s testimony has been reduced to a transcript. Similarly, a first draft of a pleading or contract may have little utility once the final pleading has been filed or the contract executed.

Second, when an attorney withdraws from representation during the pendency of a matter, the Maine Bar Rules require the lawyer to provide the client with all the information that the client needs so as to avoid “foreseeable prejudice.” M. Bar R. 3.5(a)(2).

Third, whether a matter is ongoing or concluded, the touchstone of “foreseeability” referenced in Rule 3.5(a)(2) is important and embraces the idea that, as between the attorney and the client, the attorney is in a better position to assess the potential usefulness of any particular document to the client. The client should be able to depend upon the attorney’s superior expertise in that respect.

Fourth, the fiduciary nature of the relationship between the lawyer and the client includes an obligation to be forthright and open, and to serve the interests of the client. It may be difficult for an attorney to maintain that he or she acted consistently with fiduciary obligations if documents are not provided to the client, but are later placed at issue in the course of the resolution of a legal or ethics dispute.

Finally, we offer several additional comments. There is nothing that prevents an attorney from maintaining at the attorney’s expense, copies of all material provided to the client. We also see no reason to distinguish between materials stored electronically and materials kept in paper form. Thus, when deciding what material to maintain and return, attorneys should consider and evaluate material stored electronically. To aid in this process, attorneys and firms should consider developing file retention and disposition policies, and communicating those policies to clients at the outset of representation. Attorneys should also be mindful of substantive obligations that they may have under federal and state law with respect to document retention. For example, new provisions of the Sarbannes-Oxley Act impose significant criminal penalties on anyone who destroys documents “with the intent to impede, obstruct, or influence an investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States . . . .” 18 U.S.C. § 1519.


Footnotes

[1] Although we do not further address file destruction in this opinion, we note that newly-adopted Rule 3.4(a)(4) (eff. Aug. 1, 2004) offers some guidance on file retention and destruction. That Rule states that unless file material is returned to the client or is of intrinsic value, or as otherwise ordered by a court or by agreement between the lawyer and client, a lawyer must maintain “all information and data in the lawyer’s possession to which the client is entitled” “for a minimum period of eight (8) years.” The new Rule also recognizes that a file may contain materials “of intrinsic value” that may not be destroyed until “they are out of date and no longer of consequence.” We observe, however, that once an attorney has complied with Rule 3.4(a)(4) by delivering to the client “all information . . . to which the client is entitled,” the attorney’s decision regarding destruction of any remaining materials may be subject to rules of evidence, rules of civil procedure, and substantive law, all of which fall outside the scope of this opinion and our role in interpreting Maine’s Code of Professional Responsibility.

[2] We recognize that there is a wide divergence of opinions on this particular point. “A majority of courts have ruled that a document created by an attorney belongs to the client who retained him.” Swift, Currie, McGhee & Hiers v. Henry, 581 S.E.2d 37, 39 (Ga. 2003) (collecting cases). This approach is also captured in Section 46(2) of the Restatement (Third) of the Law Governing Lawyers, which requires a lawyer to “allow a client or former client to inspect and copy any document possessed by the lawyer relating to the representation, unless substantial grounds exist to refuse.” Restatement (Third) of the Law Governing Lawyers § 46(2) (2000). Under this analysis, documents may be withheld only if providing them would violate a duty to another; the lawyer concludes disclosure would harm the client; or they were reasonably intended only for internal review. Id. comment C. “By contrast, a minority (although a substantial number) of courts and State bar legal ethics authorities . . . distinguish between the ‘end product’ of an attorney’s services, the documents representing which belong to the client, and the attorney’s ‘work product’ leading to the creation of those end product documents, which remains the property of the attorney.” Sage Realty Corp. v. Proskauer Rose Goetz & Mendelsohn, 91 N.Y.2d 30, 689 N.E.2d 879, 666 N.Y.S.2d 985 (N.Y. 1997). The Commission here is taking neither approach, but one that is in between.

[3] We underscore here that, while under the Bar Rules an attorney may have no obligation to provide a client with administrative documents of this nature upon a client’s request for the file, a court or tribunal could order an attorney to provide those documents if the attorney and the client are involved in a dispute that would render the documents relevant. Thus, an attorney should take care not to destroy such documents, if the attorney is on notice of potential litigation in which the documents might constitute relevant evidence.

[4] There may be documents that ordinarily should be provided to the client, but that might be withheld or screened in a particular case because of exceptional circumstances. For example, documents, or information within documents, the disclosure of which would violate a duty imposed by law or to a third party should be withheld. These would include documents that are subject to a confidentiality agreement imposed by a court that forbid disclosure to the client and entries in documents that contain confidential information concerning other clients and that therefore should be redacted. Material that might, in the attorney’s reasonable judgment, cause significant harm to the client – for example, certain medical or psychiatric records that might be injurious to the client – can be withheld in limited circumstances (on this point, the Restatement (Third) of the Law Governing Lawyers states: “[A] lawyer who reasonably concludes that showing a psychiatric report to a mentally ill client is likely to cause serious harm may deny the client access to the report. Ordinarily, however, what will be useful to the client is for the client to decide.” Restatement (Third) of the Law Governing Lawyers § 46 comment C (2000)). Certain offensive personal statements made by witnesses or family members, not relevant to the legal matter for which the attorney was retained, might properly be withheld.

[5] Bar Rule 3.4(a)(4) underscores this point by requiring the retention of materials “that have intrinsic value in the particular version.” M. Bar R. 3.4(a)(4).

[6] If the client provides the attorney with the reason for the request, what will reasonably be of value to the client may be assessed in light thereof. For example, if the client merely wants to maintain for posterity a historical record of what took place in court, providing copies of pleadings alone might satisfy the client’s request. On the other hand, if the client expresses no reason, and the attorney has any reason to believe that the client might want to review the entire case for any purpose whatsoever, or have it looked at by another attorney for a second opinion, then the attorney should provide the client with a copy of the entire file subject to our suggestions, supra.


Enduring Ethics Opinion