LEO: Client's Files: Photocopying Charge for  LE Op. 1171


Client's Files: Photocopying Charge for Work Product as Condition

to Release File to the Client.


February 13, 1989


Since your inquiry requested that the Committee adopt your position, it

became necessary to consider overruling an earlier legal ethics opinion

which the Committee does not do without full committee review and



You have advised that your firm represents a governmental entity which is

currently investigating a corporation pursuant to federal statutory

authority. The corporation has authorized the release of its entire client

file currently in the possession of the corporation's former legal counsel,

including all of its books, records, and other documents, and, further,

the corporation waived the attorney-client privilege for the file. After

receiving written notice from the corporation to release to your client,

the governmental entity, the entire client file, including notes,

memoranda, and other attorney work-product, the former legal counsel

refused to allow the corporation or your client to take any documents

constituting work-product unless copies were made for retention by the

firm, at the corporation's or your client's expense.


You have inquired as to whether the committee is still of the opinion

expressed in LE Op. 431, i.e., that it is not a violation of the

Virginia Code of Professional Responsibility to charge the client for

copying costs upon relinquishment of the file to the client, where the

purpose of creating that copy of the file is for the attorney's rather

than for the client's benefit. Your second question, to be answered if the

response to the first question is that attorneys may still ethically

charge clients reproduction costs, is whether it is ethical to charge a

client for reproducing the file if that client has already paid, through

the attorney's regular billing procedure, for photocopying the documents

comprising the file.


Disciplinary Rule 2-108(D) is the appropriate and controlling rule in

this situation. Under that rule, the lawyer is required, upon termination

of representation, to "deliver all papers and property to which the client

is entitled" and he may "retain papers relating to the client to the

extent permitted by applicable law." It is the opinion of the committee

that the applicable law to which DR:2-108(D) presently refers is that

which relates to an attorney's lien for legal fees owed by the client.

Based upon the facts you have presented, the Committee's opinion is

predicated on the assumption that the corporation does not have

outstanding unpaid legal fees owing to its former legal counsel. Thus, the

Committee assumes that no statutory or common law possessory lien arises

upon which the former legal counsel may base its retention of the

corporation's file.


The Committee is of the opinion that, in addition to the obvious fact

that items in the file which were originally provided to the lawyer by the

client continue to be the property of the client, items in the client's

file which constitute attorney work-product were purchased by the client

by the payment of legal fees. Thus, the client owns the attorney work-

product whether in tangible, documentary form or in the intangible

provision of the attorney's expertise in having applied the law to the

client's fact situation during the course of the representation. Scroggins

v. Powell, Goldstein, Frazier & Murphy, 15 B.R. 232, 240-241 (Bankr. N.D.

Ga. 1981), rev'd on other grounds, 25 B.R. 729 (N.D. Ga. 1982). Since the

file is thus the property of the [former] client, the Committee opines

that it must be surrendered to the client or his designee. It is further

the opinion of the Committee that, absent a prior agreement to the

contrary, it is improper to condition the release of the client's file

upon payment of copying fees where the copies will be made for the use of

the attorney. The attorney may retain copies of the materials delivered to

the client; however, the creation and cost of the copies are the

attorney's responsibilities. See District of Columbia Bar Opinion No. 168 (

April 15, 1986).


The general provision of DR:2-108(D) requires that, upon termination of

representation, the lawyer must take reasonable steps for the continued

protection of a client's interests (emphasis added). The client in this

situation should be reminded by his former counsel that once the file is

released to the third party with no copies having been made, neither the

client nor the counsel will then have any of the client's file available.

The former counsel may require the former client's acknowledgment of the

hazards involved or, with the client's approval, may make the necessary

copies and charge the client accordingly. Even in those circumstances, the

Committee is of the opinion that it is improper to condition the release

of the file upon payment of copying charges, absent a prior agreement to

the contrary. The lawyer may avail himself of the usual legal remedies

where those charges are not paid.


Since the Committee's opinion relative to your first question is

dispositive of the matter, consideration of your second question was not

reached by the Committee.


Committee Opinion February 13, 1989




See also LE Op. 1101, LE Op. 1124, LE Op. 1339, LE Op. 1366, LE Op.

1400, and LE Op. 1418.