Feb. 15, 2017 – When a former client retains new counsel and that counsel requests the client’s file, the former counsel has an obligation to provide the file in a format useable by the client. But is the former counsel ethically required to give the file in both electronic and paper formats?
Question
One of my clients decided to discharge me and retain new counsel. I accept clients’ right to counsel of their choice and am willing to do what I can to ensure a smooth transition.
I received a call from successor counsel requesting the file. I keep my files primarily in electronic format and successor counsel was happy to receive a disk with the file documents. I promptly responded to the request.
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I then received another call from successor counsel asking that I provide a paper copy of the file to the former client to prepare for a first meeting with the new lawyer. I stated that I had already provided the file, and the other lawyer claimed that I was ethically required to give the client a paper copy of the file.
Must I provide the file in a second format?
Answer
No. A lawyer has an obligation to surrender the file in a format that is usable by the client, and the lawyer fulfilled that obligation by complying with successor counsel's request for an electronic copy of the file.
This situation is directly addressed by recently released Wisconsin Formal Ethics Opinion EF-16-03. First, the lawyer appropriately honored the request from successor counsel, which the opinion addresses as follows:
It will frequently be the case that the request for a file comes not from the client, but from successor counsel. For example, a criminal defense lawyer who represented a client at trial may receive a request for the file from appellate counsel.
Lawyers owe a duty of confidentiality to their current and former clients (see SCR 20:1.6) and that duty most certainly applies to client files. Consequently, lawyers sometimes demand a written “authorization” from the client before providing the file to successor counsel. There is nothing inherently wrong with such a practice. However, successor counsel is acting as an agent of the former client and a lawyer who receives a request for the file from successor counsel should ordinarily regard that request as the equivalent of a request from the client. There is no requirement in the Rules that lawyers obtain a written authorization from the client before surrendering the file to successor counsel, and to do so could be detrimental to the interests of a client when time is of the essence. All lawyers are prohibited from making false statements of material facts to third parties (see SCR 20:4.1) and a lawyer receiving a request for a file from successor counsel may ordinarily take a statement that the lawyer is making the request on behalf of the client as being truthful.
Of course, there may be unusual circumstances where a client has specifically instructed a lawyer not to surrender a file to successor counsel, and the lawyer must abide by those instructions.
(footnotes omitted)
On these facts, there is no indication that the client had informed the lawyer not to provide the file to successor counsel, and lawyer had no reason to doubt that successor counsel in fact now represented the client. Therefore, the lawyer was correct to simply honor the request from successor counsel for the file.
Second, the lawyer is not obligated to provide the file in a second format once the lawyer has provided the file in a format usable by the client. The opinion provides in relevant part:
Lawyers have an obligation to provide the file in a format that is usable by the client. If the lawyer keeps the file in electronic format, and the client or successor counsel request that it be provided in that format, the lawyer must comply. A lawyer may also be obligated to convert an electronic file to hard copies if the client lacks the ability to access the file in electronic format. Lawyers do not, however, have an obligation to convert file from one format that is usable by the client to another simply for the convenience of the client or successor counsel.
Therefore, once the lawyer had provided the file in a format that was usable by the client (or in this case, successor counsel), there was no obligation to provide the file again in a second format.
