Ethics

Handling a File When a Client Discharges You

By Dean R. Dietrich

Question

A current client is discharging me and wants his file immediately. How do I respond, and does it make any difference if the matter is in litigation?

Answer

Generally, it is recognized that the file and its contents maintained by a lawyer belong to the client, and the lawyer may not withhold the file contents to persuade the client to pay a bill for legal services rendered. SCR 20:1.4 requires a lawyer to keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. Within this rule is a strong implication that the lawyer must provide all copies of relevant correspondence, research documents, and documentation to the client even if the client is proposing to discontinue the attorney-client relationship. Some suggest that the lawyer may withhold distributing the file to the client using the theory that the file contents are the only documents the lawyer could possess in the form of a "lawyer's lien" to force payment from the client. Wisconsin lawyers should avoid this strategy since Wisconsin courts have not acknowledged the existence of a lawyer lien right; however, an argument could be made that such a lien right should exist.

Generally, a lawyer should produce copies of all documents that have been generated as part of the client representation. It is not necessary that the lawyer produce documents that have been previously sent to the client as part of the representation; however, it is often more practical to simply produce the entire file for the client. It is strongly recommended that the attorney retain a copy of the file or at least the correspondence portion in order to respond to any inquiries regarding the scope and type of representation provided.

The lawyer is not obligated to produce or turn over personal notes of research conducted on behalf of the client or notes of conversations between the attorney and the client. The lawyer is obligated to provide the final result of any legal research conducted for the client that exists in the form of a memo or correspondence. It also may be necessary to reproduce draft copies of written briefs if they contain legal arguments that were not placed in the final draft but which could be useful for other arguments on the client's behalf.

If the client is seeking to terminate the attorney-client relationship while litigation is pending, the attorney must assess whether the cessation of representation will adversely affect the client in the pending litigation. While the termination of the attorney-client relationship may be initiated by the client, it is still recommended that the attorney comply with the requirements of SCR 20:1.16 and only proceed with the withdrawal of representation if withdrawal can be accomplished without material adverse effect on the client's interests. The comment to SCR 20:1.16 provides "even if the lawyer has been unfairly discharged by the client, the lawyer must take all reasonable steps to mitigate the consequences to the client." This again suggests that the lawyer must make sure that harm will not result to the client even when the client is seeking to discharge the lawyer from continued representation.

The comment to the rule also provides that "the lawyer may retain papers as security for a fee only to the extent permitted by law." This comment again suggests that a lawyer may retain papers in order to obtain payment for legal services rendered; however, there are no Wisconsin statutes or court rulings that authorize the retention of legal papers - especially if it will cause adverse consequences to the client.

Lawyers should cooperate with clients who seek to discharge them from continued representation in order to avoid a more significant controversy that may involve the Board of Attorneys Professional Responsibility and other court proceedings.

Wisconsin Lawyer