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Commonwealth of Massachusetts

September 1998


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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