Inquiry: Dated August 16, 1973.
Client discharged his lawyer and employed another lawyer. The discharged lawyer has been requested to "turn over the file" to the new lawyer. The discharged lawyer responded that he would be happy to turn over any papers belonging to the client but refused to turn over "any portion of the file which was his work product." What is the obligation of the discharged lawyer with respect to turning over the file?
Opinion: A discharged lawyer or a lawyer otherwise withdrawing from representation of a client is not obligated to turn over his entire file to his client or to his client's new lawyer. Many things in the file may be necessary to be kept for the lawyer's own protection. Other things may represent abortive efforts such as preliminary drafts of legal instruments or other preliminary things which, unexplained, could place a lawyer in a bad light without furthering the interest of his former client.
DR 2-110A(2) requires that a lawyer shall not withdraw from employment without "delivering to client all papers and property to which the client is entitled . . ." This and other requirements of DR 2-110 are designed to minimize the duplication of legal effort and prejudice to a client when there is a change of representation. Presumably, a discharged lawyer, whether he withdraws voluntarily or is discharged, is paid for his services. If not, he has legal redress.
Generally, anything in the file which would be helpful to the new lawyer and not necessary for the protection of the discharged lawyer should be turned over. It is impossible to catalogue everything in a file which should be turned over to the client or the new lawyer. Things which clearly should be turned over are papers and other things delivered to the discharged lawyer by the client such as original instruments, correspondence, and cancelled checks. In addition, the discharged lawyer should turn over correspondence generated by him during the period of representation, and replies received by him to such correspondence relating to the representation; instruments submitted to him by his adversary or the adversary's lawyer (if he is not under obligation to return them), instruments he has drawn and which have been submitted by him to his adversary or his adversary's lawyer, completed briefs, or other legal memoranda actually filed and submitted to the Court or which have been completed and are ready for use. Such things are likely to be helpful to the new lawyer in the further handling of the matter, either as evidence or otherwise. The discharged lawyer's notes made for his own future reference and study and similar things not representing a completed work product need not be turned over. It is not improper for the discharged lawyer to retain copies of anything that is turned over.
No animosity toward the former client should color the discharged lawyer's actions. He should also be mindful of the consideration and courteous dealings with his fellow lawyers enjoined by EC 7-28.
The inquiry does not state whether or not the discharged lawyer has been paid for his services. Whether he has been paid or not does not alter the discharged lawyer's duty. "The only recourse an attorney has against a client who refuses to pay fees is to institute action against the client to recover the amount due. The attorney has neither the ethical nor the legal right to withhold the client's papers." Ethics Opinion 559. See also Ethics Opinions 7 and 725.