Getting Your File from Your Previous Attorney: What You Need to Know

June 16, 2021 Criminal Defense

Who Owns the Client’s File?

Florida law recognizes anything that an attorney prepares for the purpose of representation is the attorney’s property – including contents within a client’s file.[1] However, an attorney acts contrary to the broad rules of ethics and professional conduct when they fail to turn over documents from the client’s file requested by a client’s new attorney.[2] This is because Florida ethics and professional rules of conduct require attorneys to always act in the best interest of the client, even when the client has chosen to terminate representation and retain new counsel.[3]

What is the Standard Under the Florida Rules of Professional Conduct?

Florida Rule of Professional Conduct 4-1.16(d) “Declining or Terminating Representation” states that:

“Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interest, 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 lawyer may retain papers and other property relating to or belonging to the client to the extent permitted by law.”[4]

This rule essentially obligates prior counsel to protect the client’s interest by any lawful manner, meaning that prior counsel must turn over everything in the client’s file that the client or new counsel is lawfully allowed to receive. As long as the requests for such documents are specific, Florida law recognizes that prior counsel must furnish their former clients or their former client’s new counsel with the requested documents.[5] Under the Rules of Professional Conduct, even an attorney who feels that they have been discharged unfairly by the client must take all steps reasonable to mitigate any adverse consequences to the client.[6] This includes cooperating with newly retained counsel by turning over client files where requested.[7]

What is the Standard under the American Bar Association Model Rules of Professional Conduct?

While the American Bar Association’s (ABA) Model Rules of Professional Conduct are not binding, or mandatory for States to follow unless States adopt a specific ABA Rule, they provide helpful guidance for attorneys and clients who have ethics or professional conduct questions. Under Model Rule 1.15 and 1.16(d), a lawyer is required to turn over to their former clients any papers or property to which that client is legally entitled.[8] While a client is not entitled to any material that the lawyer generated for the lawyer’s own purpose in working on the client’s matter, the clients’ interests must always come first and may require that certain materials the lawyer generated for the lawyer’s own purpose be turned over to the client.[9]

Rule 9-102(B)(4) of the ABA’s Model Code of Professional Responsibility states that a lawyer must promptly pay or deliver to the client as requested by the client, the properties in possession of the lawyer to which the client is entitled to receive.[10] ABA Ethics Opinion 1376 interpreted this to mean that the attorney must return all of the materials supplied by the client and also the “end product” of representation, but not any notes or memos prepared by the attorney as those would be entitled to work product privilege.[11] ABA Formal Opinion 471 discusses the “end product” approach versus the “entire file” approach.[12] The “entire file” approach mandates that the client be entitled to their entire file unless the lawyer establishes that a specific exception applies and certain property or paper must not be turned over.[13] Some states that follow this approach include Iowa, Alaska, Arizona, Colorado, Washington D.C., and Virginia.[14] Meanwhile, the “end product” approach entitles the client to receive correspondence by the lawyer for the benefit of the client, any discovery material or reports for which the client has paid for, any pleadings or other papers officially filed in a proceeding, contracts, wills, corporate records, and other similar documents.[15] Some states that follow this approach include Alabama, Illinois, Kansas, Missouri, and Utah.[16]

How Can We Help?

Ending representation can be an awkward and difficult process. Sometimes previous counsel will want to withhold client files. It is important that you or a loved one retain new counsel well versed in the rules of ethics and professional responsibility. Contact a Tallahassee criminal defense lawyer as soon as possible to explore your options and ensure you receive all property to which you are entitled from prior counsel. Don Pumphrey and the members of the legal team at Pumphrey Law Firm are well educated in Florida and the American Bar Associations’ rules of ethics and professional responsibility and can ensure that you or a loved one have the easiest transition from former to new counsel possible. Call a defense attorney today at (850) 681-7777 or send an online message to discuss your options during an open and free consultation with an attorney in our legal team.

This Article was Written by Gabrielle D’Esposito

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[1] Potts v, State, 869 So.2d 1223 (Fla. 2d Dist. App. 2004).

[2] The Florida Bar v. Wells, 602 So.2d 1236 (Fla. 1992)

[3] The Florida Bar v. Bazley, 597 So.2d 796 (Fla. 1992).

[4] Fl. St. Bar Rule 4-1.16.

[5] Id; Dowda and Fields, P.A. v. Cobb, 452 So.2d 1140, 1142 (Fla. 5th Dist. App. 1984); Dubose v. Shelnutt, 566 SO.2d 921, 921 (Fla. 5th dist. App. 1990).

[6] Fl. St. Bar Rule 4-1.16 (comment).

[7] The Florida Bar v. Grusmark, 544 So.2d 188 (Fla. 1989); Wells, 602 So.2d at 1236; Bazley, 597 So.2d 796.

[8] Rules 1.15 and 1.16(d), ABA Mod. R. Prof. Con.

[9] Id.

[10] Rule 9-102(B)(4) ABA Mod. C. Prof. Resp.

[11] ABA Ethics Opinion 1376 (1977).

[12] ABA Formal Opinion 471 (2015).

[13] Id.

[14] Id.

[15] Id.

[16] Id.

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