Right of Client to Obtain File from Attorney
by Gary Muldoon
What is the extent of an attorney’s obligation to turn over a file to a former client, or to another attorney hired by the client? What is the obligation when fees are still owed? With an open file; or a closed file? Malpractice and disciplinary issues may be involved.
The leading case in the area is Sage Realty Corp v Proskauer, Rose, Goetz & Mendelsohn, LLP, 91 NY2d 30, 666 NYS2d 985, 689 NE2d 879 (1997). In Sage Realty, a law firm represented a corporation on a complex business transaction, resulting in more than $1 million fees and a quite sizable file of documents. After what was described as a "falling out" between client and counsel, the corporation sought its files in their entirety from the law firm. The firm turned over certain documents but declined to turn over others.
More than "end product" required
The Court of Appeals held that the law firm was required to turn over more than just the "end product" – pleadings actually filed, correspondence with a client, opposing counsel and witnesses, other papers exposed to public light, and final versions of records prepared for the client’s actual use.
Client "presumptively entitled" to documents
Instead, adopting the "majority position" on this issue, the Court of Appeals held that the client was "presumptively entitled" to access to the attorney’s entire file on the represented matter, subject to narrow exceptions. Absent good cause, the client is "entitled to inspect and copy work product materials, for the creation of which they paid during the course of the firm’s representation."
Certain exceptions to disclosure were noted. The lawyer is not required to disclose documents that might violate a duty of nondisclosure owed to a third party, or otherwise imposed by law. Additionally, nonaccess is permissible to documents intended for internal law office review and use: "The need for lawyers to be able to set down their thoughts privately in order to assure effective and appropriate representation warrants keeping such documents secret from the client involved."
Where a dispute arises, a hearing, including in camera review, over what may be disclosed, should be held. Additionally, the law firm can apply for "protective remedies."
Cost of copying and assembling documents
The Sage Realty decision also holds that the cost of assembling and delivery documents to the client "is properly chargeable to the client under customary fee schedules to the firm, or pursuant to the terms of any governing retainer agreement."
What the law firm must disclose may arise in a legal malpractice action. See Gamiel v Sullivan & Liapakis, PC, 289 AD2d 88, 733 NYS2d 610 (1st Dept 2001); Getman v Petro, 266 AD2d 688, 701 NYS2d 447 (3d Dept 1999).
In recent years, the issue of document disclosure has been compounded by electronic documentation. See NYC Eth. Op. 2008-1, 2008 WL 3911383.
Retainer agreement and closing letter
It may be appropriate for a retainer agreement to address the cost of providing documents to the client. See NYC Eth. Op. 2008-1, 2008 WL 3911383.
Additionally, the retainer agreement might address how long the law firm is required to retain documents. An Oklahoma Bar Association website suggests a provision in the retainer agreement that if the client does not seek the documents within a specified period of time after the case is closed, the file will be destroyed. A closing letter at the end of representation should remind the client of this. See Hendryx, "To Trash or Not to Trash."
Disciplinary action taken
Not providing files to clients may result in disciplinary action. In one proceeding, a lawyer’s failure to return files to clients, despite numerous requests, was improper. Matter of Cohen, 22 AD3d 89, 801 NYS2d 333 (2d Dept 2005). The failure to turn over files to clients or successor attorneys, in violation of court orders, resulted in discipline. Matter of Pollack, 268 AD2d 153, 706 NYS2d 120 (2d Dept 2000); Matter of Solymosy, 225 AD2d 152, 683 NYS2d 251 (1st Dept 1999); DR 9-102(C)(4).
A law firm’s practice was to not release a file until the former client agreed in writing that no funds previously paid should be reimbursed. The law firm was censured. Matter of Law Firm of Wilens & Baker, 9 AD3d 213, 777 NYS2d 116 (1st Dept 2004).