Opinion #51. Refusal to Provide Deposition to Ex-Client Without Reimbursement of Cost

Issued by the Professional Ethics Commission

Date Issued: December 5, 1984

Question

May a lawyer refuse to provide a former client a deposition and other data in the client’s file unless and until the former client reimburses the lawyer for the costs of those items which were paid by the lawyer?

Opinion

This inquiry arises out of a situation in which a lawyer was representing a client in a still pending civil action; the client failed to pay any sum on account of fees or disbursements; and the lawyer has obtained permission from the Superior Court to withdraw from further representation. The client has now obtained another lawyer who has requested the entire file from his client’s former lawyer, and that file has been provided, except for a deposition and certain data, the costs of which were advanced by the lawyer first representing the client. Under these circumstances, the lawyer who first represented the client inquires as to the ethical propriety of his insistence on reimbursement from his former client for costs prior to turning over materials obtained as a result of his advancing such costs.

It is the opinion of the Grievance Commission that under these circumstances the lawyer is required to furnish to the lawyer’s former client the contents of the former client’s file, including the deposition and other data, the costs of which were advanced by lawyer, and that it would be improper under M. Bar. R. 3.7(c)(1) for the lawyer to condition the furnishing of such material on reimbursement for such costs.

Several provisions of the Maine Bar Rules bear on this inquiry:

  1. M. Bar R. 3.5(a)(2) provides inter alia, that “[a] lawyer shall not withdraw from employment until he has taken reasonable steps to avoid foreseeable prejudice to the rights of his client, including . . . delivering to the client all papers and property to which the client is entitled. . . .”

  2. M. Bar R. 3.5(a)(3) provides that “[w]ithdrawal shall not be conditioned upon payment by the client for services to date; and a lawyer who withdraws from employment shall refund promptly any part of a fee paid in advance that has not been earned.”

  3. M. Bar. R. 3.6(f)(2)(iv) provides, inter alia, that a lawyer shall “promptly deliver to the client, as requested by the client . . . properties in the possession of the lawyer which the client is entitled to receive.”

  4. M. Bar. R. 3.7(c)(1) provides, inter alia, that while a lawyer may “[a]ssert a lien granted by law against the proceeds of such action or litigation to secure his fee or expenses,” this “does not authorize an attorney to assert a lien on a client’s file in order to secure payment of his fee. The assertion of such a lien (if any exists) is improper.”

  5. M. Bar R. 3.7(d) provides, inter alia, that “a lawyer may advance or guarantee the expenses of litigation, including court costs, expenses of investigation, expenses of medical examination, and expenses of obtaining and presenting evidence.”

    While these provisions of the Maine Bar Rules do not explicitly address the question of payment for a lawyer’s disbursement, as distinguished from payment for a lawyer’s services, the Commission construes M. Bar. R. 3.7 (c)(1), which prohibits a lawyer from asserting a lien on a client’s file in order to secure payment of his fee, as encompassing a prohibition against the assertion of a lien on a client’s file in order to secure the payment of a lawyer’s disbursements. Any other construction of that Rule would be prejudicial to the former client and would thus be inconsistent with M. Bar. R. 3.5(a)(2) which expressly requires that a lawyer shall not withdraw from employment until he has taken reasonable steps to avoid foreseeable prejudice to the rights of his client. Given the Commission’s construction of Rule 3.7(c)(1), the Commission concludes that under the circumstances presented here, it would be improper under that Rule for the lawyer to condition the furnishing of the deposition and other data to his former client on reimbursement for his costs for that material. The Commission also notes that this result is consistent with an earlier opinion of the Maine Bar Association Professional Ethics Committee, Opinion No. 39, issued February 2, 1976.

The result reached here does not mean that the lawyer has no recourse. If a client has agreed to be liable for the lawyer’s reasonable expenses and disbursements, a lawyer who withdraws from representation, with leave of Court, may have a civil remedy against his former client to recover such expenses and disbursements.


Enduring Ethics Opinion