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OBA Ethics Counsel

Ethics Opinion No. 295

Adopted March 16, 1979

QUESTION

A client for whom you or a member of your law firm has done work comes to the law office and requests that all of his files be delivered to him.

Is the lawyer or firm required to deliver the complete file to the client or is the lawyer required to furnish only portions of the file, and if so, what portions, and if photocopies are to be made, who is to withstand the photocopy charges, etc.?

DISCUSSION

Duty to Turn Over Files to Client

In this portion of the Advisory Opinion, the assumption is being made that there is no dispute between the former attorney and client regarding fees. As a dispute about fees substantially alters the lawyer's obligations and rights, the latter part of this opinion will address that matter. This first portion presupposes that the employment relationship has been terminated and that either all fees have been paid or any that are due and unpaid are not in dispute.

Informal Opinion 1376 dated February 18, 1977 promulgated by the Committee on Ethics and Professional Responsibility of the American Bar Association provides significant guidance to a lawyer faced with the request for the return of clients' files.

The position taken in Informal Opinion 1376 very clearly requires that the attorney return all materials supplied by the client to the attorney. In addition, materials in the file for which the client has paid and which will be of benefit to the client should be delivered to the client. However, items that have been created by the lawyer for his own use (and apparently not for the use of the client) need not be returned.

As is stated in Informal Opinion 1376:

"The ethical principles involved are simple. The client is entitled to receive what he has paid for and to the return of what he has delivered to the lawyer. Beyond that, the conscientious lawyer should not withhold from the client any item which it could reasonably be anticipated to be useful to the client."

The posed question also inquires as to who should withstand the cost of copying. It is clear that any items that the client has given to the lawyer should be returned to the client and if the lawyer desires to retain copies, it should be at the lawyer's expense. Whether or not the lawyer makes charges for other items such as briefs, pleadings, etc. should be determined by a reference to the lawyer's normal practice. If the lawyer normally furnishes an existing client with a copy of a brief or a pleading without charge, then the same should be done for a terminated client. On the other hand, if the lawyer customarily charges the client for such copies, then it would be appropriate to impose the normal charge.

Matters in Which the Fee is in Dispute

The lawyer's right to retain a file when a fee has not been paid or a fee is in dispute has traditionally been thought of as not a matter of ethics but a matter of law. See Informal Opinion 1376 and Formal Opinion 209.

It is clear that there is nothing unethical about a lawyer acquiring a possessory lien in the files given to him by his client in order to secure the payment of proper fees. See DR 5-103(A)(1) and Ethical Consideration 5-7.

Indeed, Oklahoma has long recognized the general, possessory or retaining lien given to a lawyer on property or money of his clients in the hands of the lawyer. See Roxana Petroleum Co. v. Rice, 109 Okla. 161, 235 P. 502 (1925); In Re Choate, 174 Okla. 446, 50 P.2d 706 (1935) and In Re Hays, 189 Okla. 386, 118 P.2d 265 (1941). Under certain circumstances, an additional statutory lien is available to an attorney under Title 5 O.S. § 6.

It would appear that the lawyer's duties in regard to the collateral (files) that he is holding to secure his alleged right to payment of fees would be governed by the general commercial law applicable to such matters and not to ethical considerations. However, once the dispute as to fee has been resolved, the lawyer should be bound by the parameters of conduct set forth above.