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COLUMN ETHICS PERSPECTIVES

HAND IT OVER

THE ETHICS OF TURNING OVER THE CLIENT
FILE UPON TERMINATION OR WITHDRAWAL

Shane Lawson

he attorney-client relationship obtain the client file is absolute. As succinctly includes additional language stating that
can come to an early end for stated by the Supreme Court of Ohio: “an “‘[c]lient papers and property’ may include
a variety of reasons. Examples attorney who is discharged must yield the correspondence, pleadings, deposition
include the development of a case file.” Reid, Johnson, Downes, Andrachik & transcripts, exhibits, physical evidence,
Tconflict, client dissatisfaction Webster v. Lansberry, 68 Ohio St.3d 570, 574, expert reports, and other items reasonably
with the lawyer’s services, or the client’s failure 629 N.E.2d 431 (1994). necessary to the client’s representation.”
to pay fees and expenses. Regardless of the The requirement is confirmed in Ohio Prof.Cond.R. 1.16(d). Other materials
reasons resulting in the conclusion of the Rule of Professional Conduct 1.16, which generally considered to be “reasonably
representation, however, the client’s right to requires an attorney upon the termination necessary to the client’s representation”
of representation to “take steps, to the include all documents initially provided
extent reasonably practicable, to protect a by the client, court filings and orders,
client’s interest” — specifically including discovery and evidentiary materials, and
by “delivering to the client all papers and third-party investigatory reports or records
property to which the client is entitled.” paid for by the client. See Ohio Advisory
Prof.Cond.R. 1.16(d); see also Prof. Opinion 92-8 (interpreting predecessor to
Cond.R. 1.4(a)(4) (requiring lawyer to Rule 1.16); ABA Formal Opinion 471 at 2,
promptly comply with a client’s request for 4. Drafts of yet unfiled briefs or motions,
information). While the mandate to provide along with relevant research, may also be
the client file is clear, whether certain deemed reasonably necessary to the client’s
materials are to be considered part of that representation — and thus part of the client
file, or may be excluded from production, file — especially if the provision of those
will often require the exercise of the documents are necessary to protect the
attorney’s professional judgment. client’s interest moving forward (e.g. due to
an impending filing deadline or the cost the
Determining what constitutes the client would incur to have successor counsel
client file. re-create the work). See ABA Formal
As a threshold matter, what materials Opinion 471 at 4.
the client is entitled to receive upon Whether a client is entitled to a lawyer’s
termination varies by state. ABA Model notes and internal memoranda after
OVER 25 YEARS OF Rule 1.16 does not specifically delineate termination is dependent on whether those
PERSONAL INJURY, the “papers and property to which the materials are reasonably necessary to the
MEDICAL MALPRACTICE, client is entitled,” and jurisdictions have client’s representation. That issue is addressed
AND AUTO / TRUCKING interpreted the requirement in different in Ohio Advisory Opinion 2010-2, which
CASES ways. Some states take an “entire file” states in pertinent part:
approach with limited exceptions, while A lawyer’s notes to himself or herself
216.223.7535 others have implemented an “end product” regarding passing thoughts, ideas,
impression, or questions will probably
approach. See, e.g., ABA Formal Opinion
ROBENALTLAW.COM 471 (discussing different approaches). not be items reasonably necessary
to a client’s representation. Internal
In Ohio, initial guidance is provided
by Ohio’s version of Rule 1.16, which office management memoranda such
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