When The Client Wants Your File Too
You’ve given it your all and your client has been pleased with how the matter progressed. However, now that things are wrapping up, this client thought the time was right to let you know that once everything is finalized you are to turn over the original file. In short, you’ve just been informed you are not to retain anything relating to this matter at all. Here’s the problem: If you comply, you will lose the ability to put on a proper defense should a malpractice claim ever arise because the client will have complete control of the file. And, even if you are successful in eventually obtaining access to that file should the worst ever happen, realize that it may or may not contain everything you initially turned over. Admittedly, this situation doesn’t happen often; but since it does happen, let’s talk about your options.
ABA Model Rule (MRPC) 1.16 Declining or Terminating Representation is where we need to start. Although paragraph (d) states that upon termination of representation the lawyer is to surrender papers and property to which the client in entitled, it also goes on to say, “the lawyer may retain papers relating to the client to the extent permitted by other law.” Even more interesting is language in MRPC 1.6, the confidentiality rule. Since a lawyer may reveal confidential information in order to establish a defense in a controversy between the lawyer and the client, a reasonable inference is that a lawyer has every right to retain a copy of every client’s file because any other reading would take away a lawyer’s ability to establish a defense in any such dispute. The logical conclusion is that a lawyer may retain a copy of the file in spite of a client’s explicit instruction not to.
That said, there may be situations where a client request or instruction to not retain anything could be viewed as reasonable. Perhaps there is a concern over making sure that highly confidential information remains highly confidential. Still, if you comply with the request, we’re back to the how-do-you-defend-yourself problem, which begs the following question: Could you ask for a release of liability in exchange for turning over everything in your possession? This is where it gets interesting. Often lawyers will answer no, arguing the rules of professional conduct prohibit this; but do they?
The answer lies in MRPC 1.8(h). Under this rule a lawyer shall not “make an agreement prospectively limiting the lawyer’s liability to a client for malpractice.” [Emphasis is supplied.] Since, there is no similar prohibition regarding matters that have been completed, it would appear that a lawyer may indeed ask for such a release; although depending upon who the client is, the client should be advised to seek independent advice about signing such a release. Think about it. If this weren’t the case, how could anyone ever settle a malpractice claim?
Of course, there may be times when the client has no intention of signing a release and no intention of letting you keep a copy of the file, if for no other reason than the client is just one of those “high need for control/power hungry” types. Now it’s decision time. You certainly could acquiesce, but I would strongly recommend you don’t. As I see it, the only real choice you have is to tell the client that, in spite of the client’s wishes, you will be retaining a copy of the file in accordance with our ethical rules and let things settle out as they may. Worse case scenarios are you lose the client and move on or the client tries to take some action against you such as filing a bar complaint, which goes nowhere as I see it.
Now, one caveat: just because a general release of liability in exchange for giving up your right to retain a copy of the client’s file should pass ethical muster, don’t also think that asking the client to sign a general release of liability as a condition of returning the client’s file does too. It absolutely doesn’t.
Authored by: Mark Bassingthwaighte, Risk Manager
Since 1998, Mark Bassingthwaighte, Esq. has been a Risk Manager with ALPS, an attorney’s professional liability insurance carrier. In his tenure with the company, Mr. Bassingthwaighte has conducted over 1200 law firm risk management assessment visits, presented over 550 continuing legal education seminars throughout the United States, and written extensively on risk management, ethics, and technology. Mr. Bassingthwaighte is a member of the State Bar of Montana as well as the American Bar Association where he currently sits on the ABA Center for Professional Responsibility’s Conference Planning Committee. He received his J.D. from Drake University Law School.