Surrender of Deposition Transcript
Adopted: January 19, 2007
Opinion rules that, when representation is terminated by a client, a lawyer who advances the cost of a deposition and transcript may not condition release of the transcript to the client upon reimbursement of the cost.
Inquiry #1:
Attorney A represented Client in an action alleging that Client was beaten by guards at the county jail. Attorney A advanced over $2,000 for the cost of a deposition and the deposition transcript. Client discharged Attorney A and hired Attorney B to prosecute his claim. Attorney B requested the file, including the deposition transcript, from Attorney A. Attorney A refused to release the transcript unless he was paid for the cost of the deposition and the transcript.
May Attorney A condition release of the deposition transcript on reimbursement for the amount advanced for the deposition and the transcript
Opinion #1
No. Rule 1.16(d) requires a lawyer "[u]pon termination of representation85[to] take steps to the extent reasonably practicable to protect a client's interests, such as85surrendering papers and property to which the client is entitled..." RPC 79 is also on point. The opinion provides that a lawyer who advanced the cost of obtaining medical records to decide whether to take a case may not condition the release of the records to the client upon reimbursement for the cost. The following excerpt includes the operative provisions of the opinion:
Law Firm X must turn over unconditionally to its client any material such as copies of medical reports or statements of expert opinion which were obtained on the client's behalf and account if such would be useful to the client in further prosecution of her claim. Rule 2.8(a)(2) of the Rules of Professional Conduct [now Rule 1.16 requires that a lawyer who withdraws from employment take reasonable steps to avoid foreseeable prejudice to rights of the client. One means of avoiding such prejudice is, in the language of the rule, "delivering to the client all papers and property to which the client is entitled." Although the rule itself does not define the extent of the client's entitlement, the comment to the rule does indicate that, "anything in the file which would be helpful to successor counsel should be turned over."85. If material obtained during the evaluation process on the client's account would be of some value to the client in pursuing her claim, it must, under the terms of the rule, be surrendered unconditionally without regard to whether the cost of its acquisition was advanced by the law firm or the client
Rule 1.16(d) does permit a lawyer to retain papers relating to the client "to the extent permitted by other law." However, the Ethics Committee is aware of no North Carolina statutory or case law that entitles a discharged lawyer to a general or retaining lien on the papers or other property received by the lawyer during the client's representation. Even in jurisdictions where retaining liens are permitted by law, the regulatory bars "generally have held that a lawyer's legal right to execute a lien granted by law to secure a fee or expense is subordinate to ethical obligations owed to the client." Annotated Model Rules of Professional Conduct, Fifth Ed., p. 275 (2003); see also, Restatement of the Law Governing Lawyers, §43 Comment b. ("A lawyer ordinarily may not retain a client's property or documents against the client's wishes."); Rule 1.16, cmt. [10]("The lawyer may never retain papers to secure a fee.").
Inquiry #2
Attorney A would like to include the following provision in his legal services agreement
Except in the case of misconduct, client agrees not to settle, compromise, or litigate said claim, or to retain any other attorney to handle said claim, without first paying attorney the costs and expenses and fees above specified
May Attorney A include this provision in his legal services agreement
Opinion #2
No, this provision is contrary to two key precepts of the Rules of Professional Conduct: the client's right to legal counsel of choice and the client's right to decide the objectives of his representation. A client has a right to discharge a lawyer at any time, with or without cause. Rule 1.16, cmt. [4]. Similarly, a client has an absolute right, at any time, to decide whether to settle, compromise, or litigate his claim. Rule 1.2(a). This provision is a violation of the Rules on its face and may not be included in a legal services agreement.