LEO: Fees: Retention of Client Files LE Op. 1176
Fees: Retention of Client Files Until Fees Are Paid.
December 19, 1988
You have asked whether an attorney may retain his work product prepared
for a client ( e.g., written memoranda of law, copies of cases and
statutes, etc.) until his legal fee has been paid in full. You have also
made the same inquiry as it concerns various documents of the client which
the client provided the attorney.
Disciplinary Rule 2-108(D), states as follows:
Upon termination of representation, a lawyer shall take reasonable steps
for the continued protection of a client's interests, including giving
reasonable notice to the client, allowing time for employment of other
counsel, delivering all papers and property to which the client is
entitled, and refunding any advance payment of fee that has not been
earned. The lawyer may retain papers relating to the client to the extent
permitted by applicable law.
Whether or not "applicable law" permits the attorney to retain work
product papers relating to the client or the client's papers which were
delivered to the attorney, is a legal question which is beyond the
province of this Committee to answer.
Even if applicable law permits the attorney to retain papers relating to
the client, the Committee opines that to do so, under certain
circumstances, may be unreasonable, and thereby violate the first sentence
of DR:2-108(D). That is, under certain circumstances retention of papers
relating to the client may be inconsistent with taking "reasonable steps
for the continued protection of a client's interests ...." Determination
of whether or not retention of papers is unreasonable, even when permitted
by applicable law, can only be made on a case-by-case basis, considering
such things as the ability of the client to pay the fee, whether the fee
is in dispute and the harm to the client if papers are retained.
Committee Opinion December 19, 1988
See also LE Op. 1332, LE Op. 1357, and LE Op. 1403.