Vermont Supreme Court addresses a lawyer’s duty to deliver “the file.”

What is “the file?”

Summary

In late February, the Vermont Supreme Court issued this opinion in which it defined “the file.”  The opinion puts Vermont lawyers on notice as to what must be delivered to the client upon the termination of the representation.  For those of you who don’t have time to read this entire post, the answer is the entire file, but for documents that fall within the limited exceptions set out in Section 46 of the Restatement (Third) of the Law Governing Lawyers.

Background

The duties to safeguard and to deliver the file are rooted in V.R.Pr.C. 1.15(a) and V.R.Pr.C. 1.16(d).  The former requires a lawyer to safeguard client property. The latter states that:

  • “Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred.”

The profession has long endeavored to identify and define the “papers and property to which the client is entitled.” Must a lawyer deliver everything that is in the file? Or, is there material in the file to which the client is not entitled?  Prior to the Court’s recent opinion, there’s not been much guidance in Vermont.

Two years ago, I posted Deliver The File. In it, I suggested that Rule 1.16(d) can be traced back to David Hoffman’s 1836 publication of 50 Resolutions in Regard to Professional Deportment.  To my knowledge, Hoffman’s resolutions are the earliest known American guidelines for attorney conduct.  His 30th resolution:

  • “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 carefully 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 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 advisory opinion “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 July 2015, the ABA’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 471.  It lists the papers that a lawyer is and is not required to deliver. The Committee advised that ABA Model Rule 1.16 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.

As bar counsel, I don’t get many inquiries asking “what is the file?” To the extent I do, they’re almost always limited to “do I have to include my notes?” 

My reply has always been along these lines: “I don’t know what Disciplinary Counsel, a hearing panel, or the Supreme Court would say.  But here’s what the VBA and ABA have advised.”  Also, in that I view my role as assisting lawyers to manage risk, I often add what I wrote in the blogpost linked above: “there’s nothing wrong with erring on the safe side and delivering the ‘entire file’ as opposed to ‘end product.’”

Which brings me back to February’s decision from the Vermont Supreme Court. 

Delivering the entire file is no longer “erring on the safe side.”  With limited exceptions, it’s the rule.

The Opinion

The case involved a dispute between an attorney and former client. As noted in the Supreme Court opinion, in 2015, the former client filed a disciplinary complaint alleging that the attorney had not delivered the entire file.  Per the opinion, “Bar counsel determined that attorney did provide client with a copy of the file and that the Rules of Professional Conduct did not require him to provide another copy.”  Thus, the complaint was closed.

In 2018, the former client sued the attorney in Vermont Superior Court. The former client alleged that by failing to deliver the entire file, the attorney had converted the former client’s property.  The former client sought an order declaring that he owned the entire file and compelling the lawyer to deliver it.  

In response, the attorney asserted that he had delivered everything to which the former client was entitled, some of it more than once, and that anything that had not been delivered was papers or property that the client was not entitled to receive. The trial court entered summary judgment in favor of the attorney.

On appeal, the Supreme Court affirmed in part, and reversed in part. 

The papers and property that the client sought fell into four categories.  The Court affirmed the trial court’s entry of summary judgment with respect to two of the categories, concluding that the former client was not legally entitled to the papers and property he sought. The Court remanded the former client’s claims in the two other categories.  

On one, the Court concluded that there exists a question of material fact as to whether the former client received everything to which he was entitled.  On the other, the Court determined that there is a question of material fact as to whether the client is entitled to a paper copy instead of an electronic copy.

For today’s purposes, and going forward, the key takeaway is the first line of paragraph 13:

  • “We hold that client owns the entire contents of the file, subject to certain exceptions.”

In reaching its conclusion, the Court analyzed the approaches taken in other jurisdictions, as well as the standard set out in Section 46 of the Restatement (Third) of the Law Governing Lawyers. The Court stated:

  • “We agree with the majority approach as set forth in the Restatement, and conclude that a client’s entire file, with narrow exceptions as identified in § 46, belongs to the client and upon request, should be turned over to the client upon termination of representation.”

Section 46 of the Restatement deals with “Documents Relating to a Representation.”  For today’s purpose, § 46 (3) is the critical paragraph:

  • (1) A lawyer must take reasonable steps to safeguard documents in the lawyer’s possession relating to the representation of a client or former client.
  • (2) On request, a lawyer must allow a client or former client to inspect and copy any document possessed by the lawyer relating to the representation, unless substantial grounds exist to refuse.
  • (3) Unless a client or former client consents to nondelivery or substantial grounds exist for refusing to make delivery, a lawyer must deliver to the client or former client, at an appropriate time and in any event promptly after the representation ends, such originals and copies of other documents possessed by the lawyer relating to the representation as the client or former client reasonably needs.
  • (4) Notwithstanding Subsections (2) and (3), a lawyer may decline to deliver to a client or former client an original or copy of any document under circumstances permitted by § 43(1)

Conclusion

We have clarity.  But for the limited exceptions set out in § 46 of the Restatement, the client owns the entire file. 

In the notes below, and by reference to the comments to § 46, I address three of the more common inquiries I receive. 

Notes

  1. Per Comment b, the duty to safeguard documents is not extinguished by the termination of the representation. Rather, “[i]t continues while there is a reasonable likelihood that the client will need the documents, unless the client has adequate copies and originals, declines to receive such copies and originals from the lawyer, or consents to disposal of the documents.”
  2. Per Comment c, a lawyer may withhold documents if delivery would violate a duty that the lawyer owes to another. The comment states “for example, if a court’s protective order had forbidden copying of a document obtained during discovery from another party, or if the lawyer reasonably believed that the client would use the document to commit a crime.”  
  3. Per Comment c, “[a] lawyer may refuse to disclose to the client certain law-firm documents reasonably intended only for internal review, such as a memorandum discussing which lawyers in the firm should be assigned to a case, whether a lawyer must withdraw because of the client’s misconduct, or the firm’s possible malpractice liability to the client. The need for lawyers to be able to set down their thoughts privately in order to assure effective and appropriate representation warrants keeping such documents secret from the client involved. Even in such circumstances, however, a tribunal may properly order discovery of the document when discovery rules so provide. The lawyer’s duty to inform the client can require the lawyer to disclose matters discussed in a document even when the document itself need not be disclosed.”

Legal Ethics

What is the file? Helpful guidance from Arizona.

Questions related to file delivery & retention are among the most common that I receive via ethics inquiry.  It’s odd, if only because so few of the complaints that are filed allege that a file wasn’t delivered or was incomplete.  Of course, I understand that with respect to the latter, a client likely wouldn’t know to complain about missing items.  Still, my general sense is that Vermont lawyers are on top of the duty to deliver the file.

But therein lies the rub: the duty is not to deliver the file.  Rather, upon the termination of the representation, V.R.Pr.C. 1.16(d) requires a lawyer “to take steps reasonably practicable to protect a client’s interests.”  Among other things, the duty includes “surrendering papers and property to which the client is entitled.”

Aside, and no offense to readers who are fans of Cheap Trick, but once I get around to proposing a rule change, I doubt I’ll recommend continued use of any form of the word “surrender.”**  I much prefer “deliver” or “provide.”  Alas, I digress.

Anyhow, the question: to what papers and property is the client entitled?  Or, what is “the file?”

In 2015, the ABA’ Standing Committee on Ethics & Professional Responsibility provided guidance in Formal Advisory Opinion 471.  I blogged about it here.  Both the opinion and my post list the items that must be delivered, as well as items that need not be provided. In other words, the opinion helps lawyers to determine what constitutes the file.  Frankly, while the opinion and my blog post are helpful, neither fully answers “what is the file?”

Fortunately, and thanks to a tip from Professor Bernabe’s Professional Responsibility Blog, I came across an advisory opinion that clarifies and simplifies the duty and analysis.

Last month, the Arizona Supreme Court’s Attorney Ethics Advisory Committee issued Ethics Opinion EO-19-0009.   Professor Bernabe blogged about it here

To me, the Arizona opinion does a terrific job answering “what is the file?” plain language. Here’s the committee’s summary of its opinion:

  • “Lawyers must retain sufficient information regarding the work they have done on a matter to permit the client to understand what was done for them and to permit a subsequent lawyer to take up the matter if the lawyer is discharged, withdraws, or is unable to continue the representation for other reasons such as death, disability, or discipline. This obligation informs the lawyers’ obligations concerning what materials they keep, how they store and organize those materials, and what they do with records at the end of a representation.”

Isn’t that exactly it? In other words, let’s fight the urge to be lawyers and debate every possible item – “what about this, what about that.”  Instead, let’s use common sense: “would this help the client or the client’s next lawyer figure out what I did for the client?” Or, as the committee notes later in the opinion:

  • “Lawyers do not maintain files for the sake of preserving files, but rather because keeping records of what they have done or plan to do in the course of representation is part of diligent, competent representation.”

Indeed!

That’s all I have for now.  However, I’m already planning a future post on other aspects of the Arizona opinion, including a paragraph that I expect will resonate with many lawyers who’ve contacted me.  By way of preview, here’s the pargraph from our friends in the southwest:

  • “The client is entitled to a single copy for free, and the lawyer may charge for additional copies or special copying requests that have associated costs, such as, scanning a file maintained in paper form. Lawyers may satisfy their obligations by providing copies throughout the representation, and do not need to provide additional free copies of those documents previously provided at the end of the representation. Of course, the lawyer may choose to provide more documents or copies than are required.”

Stay tuned!

** “Surrender, surrender, but don’t give yourself away.” Is this another way of stating that a lawyer need not include work product in the file?

Cheap Trick Surrender

Monday Morning Answers

The answers are in.  For those of you who want to review the questions, they’re here.

Honor Roll (Gold = perfect score)

  • Andrew Delaney, Martin Associates
  • Bob Grundstein
  • Team Liberty (Dan Barrett, Jenna Cutler, Brandon Sadowsky) ACLU of Connecticut
  • Hal Miller, First American
  • Kane Smart, Downs Rachlin Martin
  • Ian Sullivan, Rutland County State’s Attorney’s Office

Question 1

Rule 1.5(e) covers “division of fees,” aka “fee sharing” or “referral fees.”  In April, the ABA issued an advisory opinion concluding that a referring attorney may not be entitled to a referral fee if the case was  referred:

  • A.   Due to a conflict of interest; ABA Formal Opinion 474
  • B.   Because the lawyer was terminated by the client
  • C.   After being accepted for no other reason than to refer it
  • D.  To a former law partner.

Question 2

A CLE I attended earlier this week included a discussion on the different ways that States approach a particular issue.  Essentially, the States fall into two camps:  “end product” states, and “work product” states.

It’s an issue that is the subject of numerous phone calls that I receive from attorneys and one that is not limited to a particular practice area.

Delivering the file to the client upon the termination of the representation.  For an analysis, see ABA Formal Opinion 471

Question 3

In March, the Florida Supreme Court reprimanded  a lawyer for a violation related to his trust account and a “letter of protection.”

What was at issue?

  • A.  A title insurance policy & premium
  • B.  An advance conflict waiver in a flat fee DUI representation
  • C.  Disbursing settlement proceeds to a personal injury plaintiff
  • D.  Escrowing funds at a real estate closing

Question 4

Two word answer.

In a relatively recent opinion that focused on the jury instructions given at a criminal trial, the Vermont Supreme Court stated:

  • “attempting to define reasonable doubt is a hazardous undertaking and [we] continue to discourage trial judges from trying such a definition.”

Question 5

There is a high-profile case pending before the US Supreme Court in which 26 states are suing the federal government.  Last week, the federal judge in the court where the case was filed issued an order in which he sanctioned not only the DOJ attorneys working on the case:

  • but every DOJ attorney based in DC, even those not involved with the case,
  • who appears in any proceeding, whether related to the case or not,
  • in any court, whether state or federal,
  • in any of the 26 plaintiff states.

The sanction: 3 hours of ethics training per year for the next 5 years.

The case’s general subject matter a hotly debated political issue.  What is the general subject matter?

IMMIGRATION.   The order is HERE.  DOJ’s response to the order is HERE.