Opinion #120. Delivering Client's File

Issued by the Professional Ethics Commission

Date Issued: December 11, 1991

Question

An attorney has inquired as to whether an attorney who is terminating his relationship with a client is obliged to assume the expense of turning the file over to the client. The question is essentially whether it is sufficient for the attorney to make the file available for the client to pick up at his office or whether he is required to mail the file at his own expense or otherwise deliver it into the client’s hands.[1]

Opinion

Resolution of the question presented is controlled by Bar Rule 3.5(a)(2). That rule states that:

(2) A lawyer shall not withdraw from employment until the lawyer has taken reasonable steps to avoid foreseeable prejudice to the rights of the lawyer’s client, including giving due notice to the client, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled. . . .

The inquiry presented concerns the interpretation to be given to the word “delivering” in reference to the papers and property of the client. Although this term could be read as requiring the attorney to assume responsibility for conveying the file into the client’s hands, the Commission is of the opinion that the attorney’s ethical obligation will ordinarily be satisfied simply by making it available for the client to pick up at the attorney’s office. We think the primary purpose of the rule was to insure that the attorney in question would not delay the processing of the client’s case by withholding the file rather than to impose upon him the cost of transporting it to a particular location. Since the transfer of the file would ordinarily be for the benefit of the client, it seems reasonable to require the client to assume the cost of mailing or other form of delivery if he is unwilling to pick it up at the attorney’s office.[2]


Footnotes

[1] A subsidiary question as to whether an attorney can condition delivery of the file upon payment of costs of copying has been answered in a previous opinion. See Opinion #51 (1984). Since the file belongs to the client, the cost of any copying should be borne by the attorney since any such copies would be solely for his or her own benefit.

[2] The Commission can nevertheless conceive of circumstances in which a different result might obtain if, for example, the client urgently required the file in order to pursue or defend pending litigation and lacked sufficient funds to arrange a timely transfer.


Enduring Ethics Opinion