Returning client files is usually routine. It gets emotional, however, when the lawyer is discharged and fees are owed. Ethics Opinion KBA E-395 (March 1997) makes it clear that a lawyer may not hold the file hostage even when fees are owed. Client files except for work product must be given to the client. The lawyer may charge the reasonable costs of duplication. Always keep a complete copy of the file for you records.
The latest file return issue concerns the client who wants them returned in computer disk form. Is the lawyer obligated to comply? No Kentucky guidance on this issue was found, but the Wisconsin bar Formal Ethics Op. E-00-3 (7/10/00) answers the question in a sensible way that is consistent with the philosophy of KBA EÐ395:
Accordingly, law firm computer systems should be configured to facilitate access, retrieval, and disk duplication of client files.
Our Spring 1996 and Summer 1996 newsletters include articles on file retention, closing, and destruction (available at www.lmick.com). In them we advised to cover file management in your client letter of engagement by including how files are to be claimed. Now is a good time to update engagement letters to cover computer disk file returns. With client agreement in writing there is nothing to argue about provided the terms are reasonable and in compliance with the principles of KBA E-395. As a practical matter, other than original documents (deeds, documentary evidence, etc.), it may be good policy to establish for the firm the option to return files on a computer disk in the letter of engagement.For an extract of the Wisconsin ethics opinion see Current Reports, p.436, Vol. 16, No. 15, 8/16/00, ABA/BNA Lawyers' Manual On Professional Conduct.