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
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.