Last November, I posted The 50 Original Rules. It’s a post that briefly recaps the history of the conduct rules that apply to lawyers. Best I can tell, the earliest record of guidelines for attorney conduct in the United States is David Hoffman’s 1836 publication of his Fifty Resolutions in Regard to Professional Deportment. My post includes each of Hoffman’s 50 resolutions.
181 years later, it’s somewhat fascinating to me how many of Hoffman’s resolutions continue to resonate. Many are embedded in the current rules and our collective professional conscience. Given my fascination, I’ve resolved to blog about the continued relevance of Hoffman’s resolutions, taking them one at a time. To date, I’ve posted:
Today, I’m focusing on Hoffman’s Resolution #30:
- “30. After a cause is finally disposed of, and all relation of client and counsel seems to be forever closed, I will not forget that it once existed, and will not be inattentive to his just request that all of his papers may be careful arranged by me, and handed over to him. The execution of such demands, though sometimes troublesome, and inopportunely or too urgently made, still remains a part of my professional duty, for which I shall consider myself already compensated.”
In other words, deliver the file.
Rule 1.16(d) is the modern equivalent of Resolution 30. The rule requires a lawyer, upon the termination of a representation, to surrender papers & property to which the client is entitled. .
Of course, it’s not always that simple. To what is a client entitled? In other words, what is “the file”?
Vermont’s rules don’t define “the file.” In 1991, the VBA’s Professional Responsibility Committee issued Advisory Opinion 91-03. The Committee declined to “define what property a client is entitled to have.” However, it noted with approval an informal ABA opinion that “determined that an attorney must return: (1) all of the property delivered to the attorney by the attorney’s client, (2) the ‘end product’ of the attorney’s work; and (3) all other material which is useful to the client in fully benefiting from the services of the attorney.” The VBA opinion tacitly endorsed the ABA’s position that “an attorney need not deliver the attorney’s internal notes generated primarily for the attorney’s benefit in working on the client’s problem.”
In short, the VBA opinion suggests that Vermont is what bar counsel-types refer to as an “end-product” state.
In July 2015, the ABA issued Formal Opinion 471. In it, the ABA reaffirmed its long-standing position that, at a minimum, a lawyer has a duty to deliver end-product, and that end-product includes:
- anything provided by the client;
- legal documents filed with a tribunal – or those completed, ready to be filed, but not yet filed;
- executed instruments;
- court orders;
- correspondence to or from the lawyer in connection with the representation, including email and other electronic correspondence that has been retained;
- discovery & exhibits, including interrogatories and their answers, deposition
transcripts, expert witness reports and witness statements, and exhibits;
- legal opinions issued at the client’s request; and,
- reports, evaluations, or assessments paid for by the client.
By contrast, the ABA concluded that Model Rule 1.16(d) does not require a lawyer to provide a client with material generated for the lawyer’s own purpose in working on the client’s matter. For instance,
- drafts & markups;
- internal research & legal memoranda;
- personal notes;
- hourly billing records;
- internal conflicts checks;
- notes regarding ethics consults;
- a general assessment of the client’s matter; and,
- documents that might reveal the confidences of other clients.
However, the ABA cautioned that if the professional relationship is terminated before the matter has been completed, the duty to protect the [now] former client’s interests might require the lawyer to turn over material that the lawyer prepared for the lawyer’s own purpose.
Again, Vermont’s rules provide no guidance. So, with that in mind, the Professional Responsibility Board is considering whether to recommend that the Court adopt a rule that defines the file. I’ve asked the Board to work from a definition that was proposed last year in Massachusetts.
For now, there’s nothing wrong with erring on the safe side and delivering the “entire file” as opposed to “end product.” Indeed, New Hampshire is an “entire file” state. Or, call me and we can chat about what to include when you deliver “the file.”
What’s most important is to pick an approach. Rule 1.16(d) is not optional. It very clearly mandates delivery of the file upon termination of the representation.
Time consuming? Maybe. On that note, however, Hoffman was wise. As time-consuming as he recognized file delivery might be, he also recognized that it was part of his professional duty. It lives on as part of yours.
Deliver the file.