By Donald R. Lundberg File, file, who’s got the file? Client rights to return of property lients often complain to the client and should be treated with Note that the duty to return Disciplinary Commission the same duty of care that Prof. client property does not require a Cthat their lawyer won’t give Cond. R. 1.15 requires. client request or demand. Beyond them their file. What is a client 3. Work product that results that, though, the rule basically says entitled to and when? from the lawyer’s work for the that the client is entitled to receive client: final work product (a deed, that which the client is entitled to What is ‘the file?’ a contract or an appellate brief); or receive. It acknowledges that there may be exceptions, but it doesn’t Lawyers possess many different intermediate work product (corre- E kinds of property in connection spondence with opposing counsel, describe them. In both instances, T H with legal representations. I can interrogatories or a complaint) – we are referred to external law to I think of at least five categories essentially, anything provided to give the rule substance. C S of materials: someone outside the professional Statutory duties C 1. Property the client provides relationship. U

External law is only modestly R in connection with a representa- 4. Work that is strictly internal helpful. I.C. §33-43-1-9 states: B

tion: documents, like an insurance to the lawyer’s office – such as S

policy, or a will; or tangible proper- memoranda, notes of witness inter- If, on request, an attorney refuses T ty, like jewelry. This property views, preliminary document drafts to deliver over or papers to a O person from whom or for whom the N always belongs to the client or, in – things not normally shared out- attorney has received them, in the E some cases, a third party. Rule of side , often including the course of the attorney’s professional Professional Conduct 1.15 imposes client. employment, the attorney may be on the lawyer a duty to keep this 5. Material that comes to the required, after reasonable notice, on property safe for the client and lawyer from third parties during motion of any party aggrieved, by an requires it to be identified and the representation, like the fruits order of the court in which an action, appropriately safeguarded. if any, was prosecuted or if an action of discovery. was not prosecuted, by the order of Furthermore, records of client any court of record, to deliver the funds and other property must be An ethical imperative money or papers within a specified preserved for five years after repre- Who ordinarily possesses these time, or show cause why the attorney sentation ends. (Client funds go various types of property is usually should not be punished for con- into a trust account and will not not a controversial issue. Either the tempt. be addressed further in this article.) lawyer doesn’t need the property, Unlike the obligation in Rule Client property must be secured in so the client keeps it, or the lawyer 1.16(d), this statutory duty is trig- a manner appropriate to its value. needs it to carry out the representa- gered by a client demand. Thus, property with intrinsic value, tion, so the lawyer holds it. The rub With the exception of the like jewelry, should be kept in a safe often comes when the representa- McKim case, discussed below, or a safety deposit box. Original tion terminates. What are the this provision has not documents should be stored where client’s file rights? been construed by the they will not get lost or damaged. The Rules of Professional courts as it applies to The lawyer should ask whether it is Conduct give some guidance: papers, rather than even necessary to maintain posses- “Upon termination of representa- money. It requires sion of the property at all. If it is tion, a lawyer shall take steps to lawyers to turn over to not needed to carry out the repre- the extent reasonably practicable to their clients all papers sentation, perhaps a photocopy or protect a client’s interests, such as received from them and other record will suffice, and the ... surrendering papers and proper- all papers received for original can be returned to the ty to which the client is entitled and them. client for safekeeping. refunding any advance payment of In McKim v. State, Donald R. Lundberg 2. Property the lawyer pur- fee or expense that has not been 528 N.E.2d 484 (Ind. Ct. Executive Secretary chased with client funds, like a earned or incurred. The lawyer may App. 1988), the Court Indiana Supreme Court transcript. The lawyer will certainly retain papers relating to the client of Appeals stated: Disciplinary Commission want to keep it to carry out the rep- to the extent permitted by other Indianapolis, Ind. resentation, but it was purchased law.” Prof. Cond. R. 1.16(d). (continued on page 30) with client funds. It belongs to the

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During the course of his representa- The lawyer’s file will also tion, an attorney may generate and include other documents, such as receive a vast amount and variety the lawyer’s notations, document of documentation on behalf of his drafts and copies of pleadings that client. There are certainly a number of documents within the file pertain- the lawyer neither received from ing to the criminal prosecution to the client nor from third parties for which McKim is entitled. It was the client. I.C. §33-43-1-9 is silent within the trial court’s discretion about these documents. In a disci- insofar as determining which docu- pline case, Matter of Schneider, 710 ments within the file this included. N.E.2d 178, 182 (Ind. 1999), the We do not reach this question, Supreme Court held that it was however, because neither party unreasonable for a lawyer to bill chose to address it in their briefs. a client for work done for, but not Id. at 486. provided to, the client. If the lawyer Referring to Rule of wants to be paid for the work, the Professional Conduct 1.16(d), lawyer must be willing to provide it the McKim court stated: to the client. In light of this rule we perceive that There is abundant law from the granting of a motion to compel other jurisdictions about the the production of documents which client’s right to lawyer-generated an attorney has received for a client in the course of his employment is documents. A leading case that sur- not discretionary with the trial court. veyed the law in other jurisdictions Upon motion by the party represent- is Sage Realty Corp. v. Proskauer ed, the trial court shall require an Rose Goetz & Mendelsohn, 91 attorney to deliver all papers he N.Y.2d 30, 689 N.E.2d 879, 666 obtained pertaining to the represen- N.Y.S.2d 985 (1997). A 2007 case tation to which the client is entitled. on point tracks Sage Realty and the Nothing within the language of I.C. Restatement (Third) of the Law §34-1-60-10 [now I.C. §33-43-1-9] indicates that the delivery of such Governing Lawyers (2000). Iowa documents is conditioned upon the Supreme Court Attorney Discipline prepayment of any expenses which Board v. Gottschalk, 729 N.W.2d may be associated with preparing, 812, 819 (Iowa 2007). copying, and mailing them to the The Restatement’s approach, client. reflecting the majority of jurisdic- 528 N.E.2d at 485-86. See also, tions to have addressed the issue, is Johnson v. State, 726 N.E.2d 222 that, subject to narrow exceptions, (Ind. Ct. App. 2002). the client is entitled to the entire So there you have it. The client file, including “such originals and is entitled to receive that which the copies of other documents pos- client is entitled to receive, but the sessed by the lawyer relating to trial court should hold a hearing to the representation as the client or figure out what that is. former client reasonably needs.” Restatement §46(3). The client’s Giving it up right to the file “extends to docu- So what is the client entitled to ments placed in the lawyer’s posses- receive? By statute, the lawyer must sion as well as to documents pro- return everything the client provid- duced by the lawyer ...” Id., cmt. c. ed and everything that the lawyer According to the Restatement, the received from third parties “for” primary exception allows a lawyer the client during the representation. to refuse to disclose certain law- This includes, for example, deposi- firm documents reasonably intend- tions, discovery materials and the ed only for internal review. The like. minority view is that the client is

30 RES GESTÆ • SEPTEMBER 2007 entitled only to the end product of at the conclusion of the representa- with a clear warning that it will be the lawyer’s work, not internal or tion. The point is that absent an destroyed unless claimed within a preliminary documents. agreement to the contrary, the file reasonable period of time. This is Absent clear guidance, Indiana should be returned to the client also a good topic to cover in a letter lawyers would be wise to follow the with the lawyer bearing the cost of that concludes a representation. Restatement and relinquish the retaining a copy of the items pro- With the exception of records entire file excepting only purely duced for the client as he thinks dealing with client funds and prop- internal firm documents concern- prudent. If the lawyer wants to han- erty, which must be retained for ing the representation. This is the dle it another way, she should five years, the rules are silent about safer course because it is more include a provision imposing that how long lawyers must retain client protective of client interests. cost on the client in the initial fee files. See Prof. Cond. R. 1.15(a). agreement. Note that Rule 1.5(b) There is no magic period for how Sometimes you gotta requires lawyers to tell their clients long other file materials should be pay to play the basis or rate of their fees and retained. The best approach is for It doesn’t necessarily follow expenses at the outset of represen- the lawyer to seek guidance from that the client’s right to materials tation. his legal malpractice carrier. means the lawyer must always In keeping with McKim, even Attorney retaining liens produce them for free. Generally, if lawyers may contractually charge property that came from the client their clients for reproducing the There is one major exception or was purchased with the client’s file, they should not make payment to all of the above. In Indiana, and funds should be provided at no of those costs a precondition to most jurisdictions, a common-law cost, except for the cost of delivery. releasing the file to the client. retaining lien permits lawyers to However, the lawyer should be able retain client property as a means to retain a copy of those materials Getting rid of files of securing payment of unpaid fees. It is a retaining lien because it is not at the lawyer’s expense in the event The fact that the lawyer keeps there is a malpractice claim or foreclosable. Summit Account and the client’s file after representation a disciplinary complaint. Computer Service, Inc. v. RJH of ends does not mean that the file Presumptively, any other docu- Florida, Inc., 690 N.E.2d 723, 727 materials cease to be client proper- ments the client is entitled to (Ind. Ct. App. 1998). It is generally ty. When the lawyer has no need to receive should also be made avail- recognized that the client has the continue holding it, she should give able without charging the client for the client the right to claim the file, the cost of reproduction. If the (continued on page 32) lawyer wants to retain copies, she should do so at her own expense. May a lawyer contract with the client to charge for the cost of pro- viding a file copy? For the case that generates many boxes of docu- ments, the cost of reproduction could be significant. It is standard practice for lawyers to have their clients agree to pay for copying costs. For example, when a lawyer sends a copy of a brief to a client, the client will often be charged for the cost of reproduc- ing that copy (as well as the copies that were filed with the court and the copy that was retained in the lawyer’s file) and the cost of mail- ing it to the client. There is no rea- son why it should be any different when the client wants the entire file

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right to post sufficient alternate asserting liens on client files. The only one occasion: State ex rel. security in exchange for release of most common is in criminal cases Shannon v. Hendricks Circuit Court, the property. Bennett v. NSR, Inc., because it violates public policy for 183 N.E.2d 331, 333 (Ind. 1962). 553 N.E.2d 881, 883 (Ind. Ct. App. a criminal defense lawyer to assert a Several more recent Court of 1990). retaining lien against file materials Appeals cases discuss them, e.g., Indiana law on retaining liens that might be important to the Four Winds, LLC v. Smith & is not well developed. In other defense of the case. DeBonis, LLC, 884 N.E.2d 70 (Ind. jurisdictions, case law has created The Indiana Supreme Court Ct. App. 2006); Stewart & Irwin v. certain public policy exceptions to has discussed retaining liens on Johnson Realty, Inc., 625 N.E.2d 1305 (Ind. Ct. App. 1993) and Bennett, supra. I warned lawyers in my May 2007 column that claiming a retain- ing lien is a particularly good way to enrage a former client and per- haps provoke a lawsuit. Even so, a lawyer has the right to this remedy, even if it is not always prudent. If a lawyer is going to assert a retaining lien against client papers or proper- ty, she should do so explicitly by informing the client of the lien immediately upon termination of the representation. By the time the client complains that the lawyer did not promptly return the file, it’s usually too late to claim a lien. Conclusion Clients who pay good money for legal help don’t understand when their lawyers keep file materi- als from them. They’re right – it isn’t fair. It’s bad client relations and ethically suspect to boot. Give the file up when the client asks for it, and do it promptly. q The views expressed do not necessarily represent the positions of the Indiana Supreme Court or the Disciplinary Commission.

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