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.