伦理意见333

Surrendering Entire Client File Upon Termination of Representation

Upon the termination of representation, an attorney is required to surrender to a client, to the client’s legal representative, or to a successor in interest the entire "file" containing the papers and property to which the client is entitled. This includes copies of internal notes and memoranda reflecting the views, thoughts and strategies of the lawyer.

适用的规则

• 规则1.8(i) (Imposing lien on attorney work product)
• 规则1.16(d) (Surrendering files upon termination of representation)

调查

A law firm previously represented a bank in a variety of matters. After the firm’s representation in those matters ended, the Federal Deposit Insurance 公司 ("FDIC") was appointed as receiver for the bank. The FDIC’s outside counsel has requested access to all of the firm’s files regarding the bank. The firm has provided access to all client files with the exception of a small folder containing individual attorney handwritten notes and several internal memoranda reflecting attorneys’ thoughts, impressions and strategy ideas. Outside counsel for the FDIC claims to be entitled to all of the bank’s files — including the firm’s opinion work product — by virtue of the FDIC’s statutory assumption of all rights, 标题, powers and privileges of the insured depository institution. The FDIC’s counsel has never articulated why the particular material that the firm is withholding is necessary for its investigation of the bank’s failure. 而不是, it argues simply 联邦存款保险公司, as the bank’s successor in interest, is entitled to these documents

讨论

D.C. 规则1.16 provides that "[i]n connection with any termination of representation, a lawyer shall take timely steps to the extent reasonably practicable to protect a client’s interests, 如 . . . surrendering papers and property to which the client is entitled . . . The lawyer may retain papers relating to the client to the extent permitted by 规则1.8(i)." D.C. 规则1.16(d). D.C. 规则1.8(i) creates a narrow exception to the general rule that clients are entitled to their files by allowing a lawyer to secure unpaid fees or expenses by placing a lien "upon the lawyer’s own work product, and then only to the extent that the work product has not been paid for." D.C. 规则1.8(i).¹ 对D的评论.C. 规则1.8个州, "if the client has paid for the work product, the client is entitled to receive it, even if the client has not previously seen or received a copy of the work product." D.C. 规则1.8、评论[9].

The Committee has recognized that the surrender of all files to the client at the termination of a representation is the general rule and that the work-product exception applicable to liens for unpaid fees or expenses should be construed narrowly. 看到 D.C. 道德Op. 250 (1994); D.C. 道德Op. 230 (1992). Work product "immunity" is a doctrine of evidence law, which may shield attorney work product from discovery by opposing counsel; it does not shield that same attorney work product from the attorney’s own client.

事实上, the Committee has explicitly recognized that the District of Columbia has rejected the "end-product" approach of some jurisdictions² — where the client only owns the pleadings, 合同, and reports that reflect the final result of the attorney’s work — in favor of the majority, “整个文件”方法, "which does not permit a lawyer to acquire a lien on any of the contents of the client file except that portion of work product within the file that has not been paid for." D.C. 道德Op. 283 n.3 (1988); 另请参阅 D.C. 道德Op. 168 (1986) (for purposes of determining what needs to be turned over to a former client or substitute counsel, the "entire contents of a client’s file" includes "all notes, memoranda and correspondence constituting ’work product’”); 赛奇地产有限公司. v. Rose Goetz教授 & Mendelsohn LLP), 91 N.Y.2d 30, 34, 689 N.E.2d 879, 666 N.Y.S.2d 985 (N.Y. 1997).

D.C.’s approach has been embraced by the Restatement (Third) of The Law Governing Lawyers (2000), 这说明, “在请求, a lawyer must allow a client or former client to inspect and copy any document possessed by the lawyer relating to the representation, unless substantial grounds exist to refuse." Id. at § 46(2). An attorney must surrender all papers and property to which the client is entitled. This requires the attorney to consider carefully the contents of the "file," ensuring that it contains all material that the client or another attorney would reasonably need to take over the representation of the matter, material substantively related to the representation, and material reasonably necessary to protect or defend the client’s interests. An attorney would not be required to surrender material that relates solely to the prior management of the case (如 material concerning which of the firm’s lawyers were assigned particular research projects) or to matters that are completely unrelated to the substance of the representation.

结论

For these reasons, at least so far as the D.C. 规则 of Professional Conduct are concerned, nothing in the matter at hand would justify withholding the relevant file from counsel for the FDIC.³

查询号:05-10-05
Adopted: December 20, 2005
出版日期:2005年12月

1. Although not relevant here, D.C. 规则1.8(i)也规定, even when payment has not been made, work product cannot be withheld (i) when the client has become unable to pay, or (ii) when withholding the lawyer’s work product would present a significant risk to the client of irreparable harm.
2. A minority of courts and state bar legal ethics authorities distinguish between the "end product" of an attorney’s services—e.g., 提交原告的起诉状, final versions of documents prepared for the client’s use, and correspondence with the client, opposing counsel and witnesses—and the attorney’s "work product" leading to the creation of those end product documents, which remains the property of the attorney (see, e.g.，联邦土地银行诉. Federal Intermediate Credit Bank, 127 F.R.D. 473, aff’d in part and rev’d in part on other grounds, 128 F.R.D. 182 (S.D. 小姐. 1989); Corrigan v. Armstrong, Teasdale, Schlafly, Davis & 公元824年.W.2d 92 (Mo). Ct. 应用程序.); Alabama State 酒吧, Formal 道德Op. RO 86-02; Arizona State 酒吧 Comm. on 规则 of Prof’l Conduct, Op. No. 92-1; Illinois State 酒吧 Assn., Op. No. 94-13; North Carolina State 酒吧 Ethics Comm., RPC 178 (1994); Rhode Island Supreme Ct. Ethics Advisory Panel, Op. No. 92-88 (1993); Wisconsin 道德Opinion E-82-7 (1998)).
3. 这个假设, 当然, 联邦存款保险公司, is, as a matter of federal law, in effect the "client" and is entitled to any property or files to which the bank would be entitled if it were still the firm’s client.