The Risk Manager, Fall 2000
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:
- “… when the client requests documents be provided on a computer disk which the lawyer has maintained electronically, the lawyer should provide those documents in the requested format, so long as it is reasonably practicable to do so.”
- Work product need not be provided.
- The client may be charged for the staff and professional time required to search databases, but the charges must be reasonable and not impair the client’s access to the file.
- Software contracts and copyright law may inhibit the lawyer’s ability to comply with a request for computer disk files, but the ethics rules govern the lawyer’s professional responsibility to surrender client information in electronic disk format.
- Lawyers should anticipate that clients will often want files on computer disk.
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.