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Opinion 250
Duty to Turn Over Files of Former Client to New Lawyer When Unpaid
Fees Are Outstanding
Assertion of a retaining lien on work product to secure payment by a
former client of unpaid fees is disfavored and should be undertaken only
where it is clear that all the conditions of Rule 1.8(i) have been met.
Applicable Rules
- Rule 1.8(i) (Lien on Client Files)
- Rule 1.16(d) (Termination of Representation)
Inquiry
From 1988 until 1993, Inquirer was a partner or counsel to a law firm
in the District of Columbia, specializing in representing clients before
the Federal Communications Commission (FCC). In 1993, he left that law
firm and established a practice as a sole practitioner. Many of the clients
served by Inquirer at his former law firm have “followed” him
to his new sole practice and have authorized Inquirer to tell his former
law firm that they instruct the firm to turn their files over to Inquirer.
However, at least some of these clients have outstanding unpaid balances
of fees owed to Inquirer’s former firm.
Inquirer raises a number of questions as to whether
particular types of documents in the files of clients with unpaid fees
owed to the firm must be turned over to him, per the client’s request,
under Rule 1.16(d), or whether his former firm is entitled to withhold
such materials as “work product” under Rule 1.8(i).
Discussion
The rules governing disposition of client files when a representation
is terminated are reasonably clear. Under Rule 1.16(d) a lawyer is required
to “take timely steps to the extent reasonably practicable to protect
a client’s interests” in connection with termination of representation,
including “surrendering papers and property to which the client is
entitled.” Rule 1.16(d) also provides, however, that the lawyer “may
retain papers relating to the client to the extent permitted by Rule 1.8(i).”
Rule 1.8(i), in turn, permits a lawyer to impose
a lien (often called a “retaining lien”) upon a client’s files1
to secure payment of fees—but only to a very limited extent. Under
DR 5-103(A) of the Code of Professional Responsibility, in effect in the
District of Columbia through 1990, lawyers were broadly permitted to assert
a retaining lien on a client’s files to secure payment of fees. But even
this rule was interpreted narrowly by this Committee, which went so far
as to suggest, in one opinion, that retaining liens should not be permitted.
See Opinion No. 59 (undated), note 13. See also Opinion No. 119 (April
19, 1988), in which we described the retaining lien as “an unattractive
and potentially quite harmful tool.”
These concerns were reflected in the adoption
of the District of Columbia’s version of the Model Rules of Professional
Conduct, effective in 1991. While Rule 1.8(j) of the ABA’s Model Rules
broadly permits the assertion of liens on client files to secure payment
of fees, the parallel provision of the D.C. Rules of Professional Conduct,
Rule 1.8(i), is much narrower. It bars imposition of a lawyer’s lien on
a client’s files, “except upon the lawyer’s own work product, and
only to the extent that the work product has not been paid for.”
Rule 1.8(i) further provides that the exception permitting a lawyer to
withhold work product from the client does not apply when the client has
become unable to pay the outstanding fee or when withholding the work
product “would present a significant risk to the client of irreparable
harm.” As discussed in our recent Opinion No. 230 (1992), the comments
to Rule 1.8(i) and its “legislative history” emphasize that
surrender of all files to the client at the termination of a representation
is the general rule, and that the work product exception should be construed
narrowly. Thus Comment [9] emphasizes that only “materials generated
by the lawyer’s own effort” are included within the work product
exception and that not all work product can be withheld “merely because
a portion of the lawyer’s fees had not been paid.” Similarly, Comment
[10] notes that the possibility that a client “might irretrievably
lose a significant right or become subject to a significant liability
because of the withholding of the work product” constitutes irreparable
harm, requiring that the work product be surrendered even if the fees
are unpaid.
In sum, it seems clear to us that retaining liens
on client files are now strongly disfavored in the District of Columbia,
that the work product exception permitting such liens should be construed
narrowly, and that a lawyer should assert a retaining lien on work product
relating to a former client only where the exception is clearly applicable
and where the lawyer’s financial interests “clearly outweigh the
adversely affected interests of his former client.” D.C. Bar Op.
59, supra.
With these principles in mind, we turn to the
specific questions raised by the Inquirer.
The Inquirer asks first whether particular categories
of client files fall within the work product exception of Rule 1.8(i).
We agree with the Inquirer that files containing copies of applications
filed with the FCC and amendments and correspondence relating to those
applications—also filed with the FCC—are not within the work
product exception. Regardless of their initial status, once such materials
are filed with a public agency, they are not work product. Similarly,
we agree with the Inquirer that files containing pleadings filed with
the FCC and authorizations issued by the FCC do not constitute work product.
We also agree that documents prepared by persons outside the law firm
(e.g., pleadings filed by other parties, newspaper articles, press releases)
and correspondence from the client or third parties to the law firm obviously
do not constitute work product, since they were not prepared by lawyers
or other personnel of the law firm. Finally, copies of correspondence
previously sent to the client should not be withheld, in our view, even
though such copies might be considered work product in a technical sense.2
On the other hand, we believe that materials
such as drafts of pleadings, applications or other documents, notes of
meetings and research memoranda and materials constitute work product
eligible for the Rule 1.8(i) exception so long as they were prepared by
a lawyer or other employee of the law firm.
The Inquirer also asks about the scope of the
work product lien when a client, at the time of termination of the representation,
has paid some but not all of the lawyer’s or law firm’s fees. As Comment
[9] makes clear, not all of the work product can be withheld merely because
a portion of the lawyer’s fees has not been paid. Where the unpaid fees
can be identified on a temporal basis, it is relatively easy to apply
Rule 1.8(i): only work product produced during the period for which fees
remain unpaid may be withheld. Thus, for example, if a terminated client
has paid fees through 1992, and outstanding fees relate only to work done
in 1993, the law firm may withhold only work product produced in 1993.
Where the time period covered by unpaid fees cannot be clearly identified,
the lawyer may withhold only work product that clearly has not been paid
for.
Finally, the Inquirer notes that some of his
clients have advised his former firm that, because of the Inquirer’s “continuing
need to respond to FCC inquiries and requirements in a timely fashion
in (the client’s behalf), your withholding any portion of the work product
of the [client’s] files would present a significant risk of irreparable
harm to my interest.” The Inquirer asks whether this assertion by
the client is binding on the former firm, precluding it from invoking
a Rule 1.8(i) lien on unpaid work product. We believe that, while such
an assertion by a former client must be given great weight by the firm,
it is not conclusive. A lawyer must make his or her own judgment as to
whether the client will be irreparably harmed if the work product is withheld.
Of course, the lawyer must give the client the benefit of the doubt if
the question is a close one.
Inquiry No. 93-6-13
Adopted: October 18, 1994
- Rule 1.8(i) does not address the question
of when a lawyer may assert a retaining lien against client property
other than files in the lawyer’s possession; that issue is presumably
governed by statutory or common law of the jurisdiction.
- If the lawyer wishes to keep copies of files
sent to a former client, the lawyer must bear the cost of making such
copies. See D.C. Bar Op. 168 (April 15, 1986).
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