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COLUMN ETHICS PERSEPECTIVESPECTIVE
ETHICS PER COLUMN

as personnel assignments or conflicts not be charged for any copying costs.”).
of interest checks will probably not be An attorney may not avoid these costs by Shane Lawson is a partner at Gallagher Sharp who
items reasonably necessary to a client’s claiming that he or she already sent copies focuses his practice on defending lawyers against
representation. But, a lawyer’s notes of pertinent documents as they were claims of professional liability. He represents attorneys
regarding facts about the case will most created/received throughout the course in legal malpractice litigation arising from a variety
likely be an item reasonably necessary to of representation. Lake Cty. Bar Assn. v. of underlying matters. Shane also defends attorneys
a client’s representation. Id. If a particular Kubyn, 121 Ohio St.3d 321, 2009-Ohio- in their capacity as executor or trustee in actions
note contains both information that is 1154 (2009) (lawyer publicly reprimanded alleging breach of fiduciary duty and breach of trust.
reasonably necessary, and information for conduct that included refusing to turn He counsels clients on legal ethics, and represents
that is not, then the attorney may over client file based on claim he sent the them in grievance proceedings. He has been a CMBA
partially redact the note or prepare a new client copies of all paperwork as generated member since 2011. He can be reached at (216)
note for the client containing only the or received). 696-5054 or slawson@gallaghersharp.com.
pertinent information.
Bruce Hennes has been
The file must be provided promptly,
regardless of unpaid fees or other chosen as a Lawdragon 100
disagreements.
Rule 1.16 states that a client’s file “shall be Leading Legal Consultant &
promptly delivered to the client.” There Strategist for 2019
is no exception in Ohio permitting an
attorney to retain the file due to unpaid
fess or other disagreements. “Even if the Selected for excellence & leadership
lawyer has been unfairly discharged by the to the legal profession.
client, a lawyer must take all reasonable
steps to mitigate the consequences to the
client.” Prof.Cond.R. 1.16, Comment 9;
Prof.Cond.R. 1.4, Comment 7 (a lawyer Celebrating 30 years in
“may not withhold information to serve business, Bruce has grown
the lawyer’s own interest or convenience”). Hennes Communications into
Thus, while Ohio common law historically one of the few firms in North
permitted attorney retaining liens, Ohio’s America focused exclusively
version of Rule 1.16 has precluded them on crisis management, crisis
with respect to the client’s file. Recovery
Ltd. Partnership v. Wrecked & Abandoned communications and litigation
Vessel S.S. Cent. America, 790 F.3d 522, communications consulting.
530 (4th Cir.2015) (“[I]t appears that the
Ohio Rules of Professional Conduct, which If you have a situation,
subsequently were adopted by the Ohio Hennes Communications
Supreme Court, have displaced the retaining has a strategy.
lien by obligating an attorney to turn over
files to the client upon the termination of
a representation.”); In re Hadley, 541 B.R.
829, 845 (Bankr. N.D. Ohio 2015) (noting
Rule 1.16, “undermines the ability of an
attorney to ‘embarrass’ a client or former
client into making payment by holding
onto the client’s property.”).

Expenses incurred in turning over the file
must be borne by the lawyer.
Ohio Advisory Opinion 2010-2 advises that
any expenses incurred in turning over a Terminal Tower | 50 Public Square, Suite 3200 | Cleveland, Ohio 44113
client’s file “must be borne by the lawyer.” 388 S. Main St. | Suite 400 | Akron, Ohio 44311
See also Prof.Cond.R. 1.16, Comment 8[A] www.crisiscommunications.com 216-321-7774
(“Clients receive no benefit from a lawyer Lawdragon is a legal media company that has grown a national reputation for recognizing the industry’s
keeping a copy of the file and therefore can leading lawyers and leading providers of strategic and leadership advice.
JULY/AUGUST 2019 CLEVELAND METROPOLITAN BAR JOURNAL | 45