Ethics opinion addresses charging former clients for copies of files
A former client calls your office and requests copies of his or her old files, which may be years old and perhaps in storage at another location. Or suppose it’s a current client for whom you have, at your cost, conducted discovery in a medical malpractice case and now the client wants to take that and engage another attorney.
What, if anything, are you allowed to charge for copying and providing those records?
The Professional Ethics Committee on March 23 adopted an amendment to an older ethics opinion to help provide guidance for Bar members.
“The calls that are coming into the [Bar’s] Ethics Hotline are asking whether lawyers can charge…for former clients when former clients call and ask for reproductions of certain portions of the file,” said committee member Gary Betensky, who chaired the subcommittee that drafted the amendments.
He said generally the file belongs to the lawyer and the revised opinion provides examples of what should and should not be provided to a client.
The modified opinion says lawyers generally must provide original client-provided documents particularly if they have intrinsic value; and should provide anything filed with a tribunal; executed documents prepared for use by the client; correspondence necessary to protect the client’s interests; electronic records, data, and information necessary to protect the client’s interest; discovery that has been paid for by the client; legal opinions prepared at the client’s request; and billing statements.
Clients or former clients generally would not be entitled to confidential information about other clients; internal case administration materials which could include work assignments and an assessment of the client; drafts of documents; unexecuted documents; consultations on malpractice or ethics; and internal legal memoranda and research.
The proposed opinion amendment notes the list is not comprehensive and is intended as a guide, Betensky said.
“To me, the most important sentence in this opinion…is ‘the overarching duty under [Bar Rule] 4-1.16 to take steps “reasonably practicable to protect the client’s interests” and prevent harm might necessitate providing the client with some types of materials that would ordinarily not be required,’” Betensky said.
“Most of the calls that are coming in — and there are frequent calls — are in the personal injury context,” said Virginia Buchanan, another member of the subcommittee. “It certainly provides some guidance where currently we have very little.”
The amendments apply to Ethics Opinion 88-11, which addressed an attorney’s query about providing copies of records to a client who was engaging another lawyer and had not paid costs advanced by the original attorney. The opinion discussed use of charging and retaining liens and cautioned that the use of liens could be limited by the ethical obligation for the lawyer not to prejudice the client’s interest.
The committee voted 33-0 to approve the amendments to the 1988 opinion, and those will be in a notice in the Bar News. The amended opinion is posted here.
The PEC will consider any comments to the revised opinion at its June meeting. If no comments are received, the changes will become final.
