September 1998
BAR OVERSEER
The Ex-Files
by Constance V. Vecchione
First
Assistant Bar Counsel
About twenty years ago, the first Bar Counsel,
Robert J. DeGiacomo, sent a memorandum to the then Chair of the Board of Bar
Overseers, the late Robert W. Meserve, outlining Bar Counsel's policy on the
retention by lawyers of clients' papers or files. At a time when many attorneys
considered that they had a common law retaining lien on files of clients who
had not paid their bills, Bar Counsel took the position that some, and sometimes
all, of the file had to be returned when requested by the client. This policy
was refined and revised by the Office of Bar Counsel in 1981 and 1984, then
revised again and formally adopted by the Board of Bar Overseers as Board policy
in 1989. Effective January 1, 1992, the Board policy was further expanded upon
and codified by the Supreme Judicial Court as DR 2-110(A)(4), now Mass. R. Prof.
C. 1.16(e).
As a result, most Massachusetts lawyers by
now are aware that lawyers here do not have a lien, as such, upon the whole
of a former client's file even if the client has not paid the lawyer's fees
in full. However, despite this general awareness, disputes between lawyers and
clients over the return of files continue to be a persistent source of inquiries
and complaints to Bar Counsel. While we attempt (often successfully) to resolve
these problems without having to open a file against the attorney, it would
be preferable for the lawyer and client to work the matter out between them,
without the need for Bar Counsel's intervention. To that end, this article will
review the requirements of Mass. R. Prof. C. 1.16(e), point out certain pitfalls,
and make suggestions for settling disputes.
At the outset, it is important to note
that the rule concludes with an override provision stating that, notwithstanding
any of the previous sections of the rule, the lawyer cannot refuse to turn
over all file materials if retention would prejudice the client unfairly.
Otherwise and unless this last "fail-safe" section applies, the rule describes
the circumstances in which a lawyer can or cannot refuse to turn over file
materials to a client, as well as who pays copying costs.
The rule requires lawyers within
a reasonable time following the client's request to make given items
available. Lawyers must return papers and documents which the client has
supplied, and if the lawyer wants to keep copies, it is at his or her own
expense. Lawyers must provide the client with copies of pleadings and other
court papers, although a client who has not paid the attorney's fee can
be charged for the copying based on actual cost. Investigatory and discovery
documents (for example, medical reports, photographs, depositions or expert's
reports) must be turned over if the client has reimbursed the attorney's
out-of-pocket expenses, such as the stenographer's charge for a deposition.
In a case which has not been taken
on a contingency basis, the lawyer is not required to turn over work product
for which the client has not paid (i.e., when the lawyer is still due a
fee). In a contingent fee case, the lawyer does have to turn over
work product but the client can be charged copying costs. Work product
is defined for purposes of the rule as documents and tangible things prepared
in the course of the representation of the client by the lawyer or at the
lawyer's direction and not described in any prior subsection of the rule.
The rule gives as examples of work product such items as legal research,
records of witness interviews, reports of negotiations, and correspondence.
A suggestion: it is rarely worth fighting
with clients over files, even if fees are owed. The client is entitled to most,
if not all, of the file under one section or another of Rule 1.16(e) and withholding
the file often provokes a disciplinary complaint, warranted or not.
A second suggestion: copying files
to turn over to former clients should be a priority on your list of things
to do. These are usually cases that are still open. There is a second lawyer
involved; everyone is waiting on the file; and everyone knows how to complain
to Bar Counsel. The rule requires that file materials be made available
within a reasonable time and it really is not reasonable to make someone
wait more than a week or two to receive a file. Dealing promptly with requests
for files from clients or former clients is a very simple way to avoid
unnecessary hassles.
A final suggestion: don't wrangle to
the point of standoff with a client who insists that the file be mailed,
rather than picked up at your office. The rule only requires that the file
be "made available" and lawyers are certainly permitted to require clients
to pick up their files. Indeed, there may be good reasons for doing so,
particularly if the attorney is concerned about having a receipt (but not
a release!) signed. But while this issue obviously is not a disciplinary
matter, that fact does not stop clients from complaining to Bar Counsel
or harassing the law firm and its staff. Try to work this type of disagreement
out if you can, but standing on principle in this situation is probably
more trouble than it is worth with a difficult client. It may be beneficial
for the lawyer to absorb the cost of mailing the file or having it delivered
to the client (thereby obtaining a delivery receipt), especially where
this is probably not a client you want in your office anyway.
Finally, an interesting question arose recently
as to sensitive file memos and whether this type of material is considered work
product that must be turned over to the client in situations in which the client
would otherwise be entitled to work product under Rule 1.16(e). In the particular
situation at issue, the file memos memorialized the attorney's conversations
with an emotionally disturbed, suicidal divorce client and the lawyer feared
that providing these memos to the client would be detrimental to her mental
health. Bar Counsel felt in these circumstances that the memos could be withheld
and that the client need not be told that there were memos that were not being
provided. However, this is an issue on which neither the SJC nor the BBO has
spoken and it is obviously a gray area in which there is no one-size-fits-all
answer. We encourage lawyers with questions of this sort to telephone the Office
of Bar Counsel during call-in hours for assistance in thinking through the problem.
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