OSB Professional Liability Fund

Responding to Requests for the Client File

Responding to Requests for the Client File
December 4, 2017
by Jennifer Meisberger

Lawyers routinely receive requests to share materials from the client file. Sometimes clients ask the lawyer directly, but other times the request comes from new counsel or third parties. Evaluating these requests requires you to consider who is entitled to the client file, as well as what documents and materials belong in the client file. Furthermore, you must also ask whether any limitations prevent you from releasing the complete contents of the client file.

Who is entitled to the client file?

Client documents and the client file are client property. Under Oregon Rule of Professional Conduct (RPC) 1.15-1(d), a lawyer must promptly provide the client any property the client is entitled to receive. Additionally, upon termination of representation, Oregon RPC 1.16(d) requires a lawyer to surrender property to which the client is entitled. As client files are client property, clients are therefore entitled to a copy of their complete client file, unless a restriction applies.

New counsel or others may request portions of the client file, but you have a duty to maintain your client's confidentiality. Under Oregon RPC 1.6, a lawyer may not reveal information relating to the representation unless the client gives informed consent. See the rule for additional exceptions, including if the lawyer believes the disclosure is impliedly authorized to carry out the representation. In the event of a client's death, a lawyer must carefully consider whether disclosure is impliedly authorized to produce file materials of the deceased client.

No matter who requests the client file, document the request in writing. Get the client’s informed consent in writing, too. Have the recipient sign an acknowledgement that he or she received the materials, and be sure to keep a complete copy of the client file for yourself. If you receive a subpoena, or someone requests information, documentation, or testimony about your representation of a client, contact the PLF at (503) 639-6911, and ask to speak with a Claims Attorney.

What is the client file?

The Oregon RPCs do not outline the contents of the client file. However, Formal Opinion No. 2017-192 offers guidance regarding what constitutes the client file. According to the opinion, the entire client file includes not only documents the client provided to the lawyer, litigation materials, and correspondence, but also includes information the lawyer maintained for use in the specific client matter, even emails, photographs, and text messages. Absent any exceptions, the complete client file includes the lawyer’s notes and other information often deemed attorney work product. (See Formal Opinion No. 2017-192 for full description.)

How may release of the file be limited?

Release of some or all materials in the client file may be restricted. Consider whether the recipient may not be entitled to receive all the materials within the file. For example, the recipient may not be entitled to memoranda drafted for other cases, or documents prohibited from disclosure by law or court order. See Formal Opinion 2017-192 for further detail, as well as guidance on under what circumstances the lawyer bears the cost of duplicating the file materials. (If you intend to pass duplication charges on to your client, advise the client of those charges in the fee agreement.)

What if I have a lien?

ORS 87.430 allows attorneys to hold a lien against client property, including papers and money, if the client owes outstanding legal fees. However, placing a lien on client property could create a conflict with the lawyer’s ethical duties to the client. When deciding whether to retain client property in the face of a valid lien, ask yourself whether the client has sufficient resources to pay the outstanding legal fees in full, as well as whether production of the client property is necessary to avoid foreseeable prejudice to the client. If the client does not have sufficient funds, and the client file is necessary to avoid probable prejudice to the client, your lien right must yield to your fiduciary duty to the client. In that circumstance, you would need to provide the client a copy of the client file.

In Conclusion

Always consider cautiously who is requesting the client file, and whether any restrictions exist on producing the complete file in response to the request. Evaluating what material is part of your client file, as well as understanding who you can share that content with, can help you avoid ethics complaints and malpractice claims.

Additional Resources

PLF Practice Aid, Production of Client File or Documents
PLF Practice Aid, Authorization for Transfer of Client File
PLF Practice Aid, Request for File
Formal Opinion No. 2017-192
Client Files, Revisited – More light on a topic that won’t go away,” OSB Bulletin, January 2006