This opinion has been questioned and modified in ethics opinion R-19, effective August 4, 2000.

CI-766

April 26, 1982

SYLLABUS

Where a former client requests a file and the lawyer of the lawyer's successor, has possession of the file, the lawyer has an ethical duty to deliver the file to the former client, or the client's newly retained counsel. The lawyer in possession of the file may require a written request and receipt for the file, signed by the former client, before surrendering possession of the file.

The standards concerning medical records are that all items in the chart should be made available to the patient. No lesser standard should apply to the lawyer's records and therefore all notes, memoranda and correspondence should be included in the file.

References: CI-716, CI-722.

TEXT

A law partner handled a complex domestic relations matter to a conclusion resulting in a judgment of divorce. The lawyer's former client, the ex-wife, now has retained another lawyer to set aside the judgment of divorce. The client's current counsel has demanded that the entire file be turned over to the client. The lawyer has already complied with regard to much of the file, such as pleadings and letters. The lawyer indicates an intent to comply with regard to other items, such as statements of assets of the parties to the litigation. A desire to withhold copies of the personal work product generated by the lawyer's partner and cost bills paid by the lawyer's office is expressed. The client still owes the lawyer fees for services performed and has threatened a grievance against the lawyer's partner.

Where a former client requests a file and the lawyer, or the lawyer's successor has possession of the file, the lawyer has an ethical duty to deliver the file to the former client, or the client's newly retained counsel. The lawyer in possession of the file may require a written request and receipt for the file, signed by the former client, before surrendering the file. CI-716, CI-722.

CI-716 and CI-722 have held that the standards concerning medical records are that all items in the chart should be made available to the patient. No lesser standard should apply to lawyer records and therefore all notes, memoranda and correspondence should be included in the file. It would be improper for the lawyer to withhold from the client or the client's successor lawyer any portions of the file which is retained in the lawyer's possession.

The Committee expresses no opinion on a lawyer's right to any part of the file pending payment of the lawyer's fee for professional services or satisfactory arrangements for payment of same, since that involves a question of law outside the jurisdiction of the Committee.