Wednesday, September 16, 2015

Returning Client Papers upon Termination of the Attorney-Client Relationship

Rule 1.16(d) of the Illinois Rules of Professional Conduct requires that a lawyer “surrender papers and property to which the client is entitled” upon the termination of a representation. As recognized in ABA Formal Opinion 471 (2015), the trick is determining the precise papers “to which the client is entitled.” In Opinion 471, the ABA recognized two approaches to the issue: (1) the “entire file” approach which dictates the return of every page of the client’s file unless a specific exception applies and (2) the “end product” approach, which requires surrender of the lawyer’s final product but not drafts or memos reflecting a lawyer’s legal or factual research.

Which approach does Illinois take? In adopting the “end product” approach, Illinois State Bar Opinion 94-13 (1995, affirmed 2010), identified seven categories of documents maintained in the course of representing a client. Opinion 94-13 then applied the “end product” test to each category of documents with the following results.

1.     Documents furnished by the client. Rule 1.15(b) requires that these materials be returned “promptly” upon the client’s request.

2.     Correspondence between the lawyer and client. Rule 1.4(a) entitles the client to reasonable access to this correspondence. But since by definition the client has previously received or sent these letters or emails, the lawyer can charge a reasonable amount to provide copies.

3.     Correspondence between the lawyer and third parties. Rule 1.4(a) entitles clients to copies of “significant correspondence” with third parties. If the lawyer previously provided copies of these documents, the lawyer may charge for additional copies. The client is also entitled to copies of “routine administrative correspondence” if the client agrees to pay for the copies.
4.     Pleadings, briefs, and other documents filed with a tribunal or agency. Rule 1.4(a) entitles clients to copies of “significant” pleadings and other filings. Although a lawyer is not required to provide routinely filed papers such as service certificates, a client is entitled to routine filings upon reimbursement of reproduction costs.

5.     Contracts, wills, corporate records, and similar documents. Rule 1.4(a) entitles a client to the final version (not drafts or working copies) of these documents. If the client received copies of the documents during the course of the representation, the lawyer may charge a reasonable sum for supplying additional copies.

6.     Administrative materials such as memos concerning conflicts, a client’s credit status, and time records. These documents are usually prepared for internal use and so are not relevant to the status of a client’s case. Thus, neither Rule 1.4(a) nor Rule 1.15(b) requires production of these administrative materials.

7.     Notes, drafts, internal memos, and legal and factual research. Illinois Opinion 94-13 concludes that since these items are the property of the lawyer, not the client, they need not be produced.  

Of course, an Illinois lawyer is free to supply all documents of whatever type or category to a client and many lawyers do so.

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