Legal Ethics Opinion No. 1366

Files--Duty to Client: Contents of File to Which Client is 

You have indicated that former clients have requested the entire
contents of all files relating to legal services performed for
them over a period of several years, which files include notes,
multiple drafts and other documents which lead to final documents
or resulted in advice given as to a particular matter.  You have
also noted that the former clients in question were sent copies
of all relevant documents prepared for them throughout the course
of the firm's representation.  You advise that your firm
recognizes that any client has a right to receive all documents
that it would have reason to need, including "work product"
created for the client, and that you are willing to copy such
documents at your [firm's] cost.  Finally, you indicate that your
former clients [and their new counsel] have declined your
invitation to review all material of any kind that was prepared
in representing them and, if that review uncovered any needed
documents, those documents would be given to the former clients. 

You have asked that the committee opine as to whether, under the
circumstances you describe, the "work product" to which the
former client is entitled includes multiple drafts of documents
and attorney's notes and internal memoranda.

For purposes of this opinion, the committee assumes that no fees
are owing to the firm as a result of its representation of the
former clients. 

The appropriate and controlling Disciplinary Rule relevant to
your inquiry is DR 2-l08(D) which, while permitting the lawyer to
"retain papers relating to the client to the extent permitted by
applicable law,"  requires that, upon termination of
representation, the lawyer deliver to the client all papers and
property to which the client is entitled.  The operative concept
involved in the pertinent Disciplinary Rule is meant to ensure
that the former lawyer does not prejudice his former client in
any way.  

The committee has earlier opined that the "applicable law" to
which DR 2-l08(D) refers is that which relates to an attorney's
lien for legal fees owed by the client.  See LEO #ll7l.  Thus,
under the assumption that your former client does not owe any
fees, the committee further assumes that no statutory or common
law possessory lien arises upon which you or your firm may base
any retention of any materials in the client's file.  

The committee is of the view that any legal definition of "work
product," as applied in the Rules of Evidence or elsewhere in a
legal context is inapposite to the question of delivery of a
client's file since a file may contain additional materials which
were not prepared in anticipation of litigation or for trial. 
Rather, the committee opines that the term's plain meaning is
applicable and refers to all materials prepared or collected by
the attorney, or at the attorney's direction, in relation to any
legal services for which the client engaged the attorney or the
law firm over the entire period of the provision of such
services.  Thus, the committee is of the opinion that, with
relation to the ownership of a client's file, where no fees are
outstanding, "work product" includes, as you have enumerated,
attorney's notes, internal memoranda and multiple drafts and
other documents which lead to final documents or resulted in
advice given as to a particular matter.  

Thus, the committee is of the further opinion that the client is
entitled to the entire contents of his file and the attorney is
not entitled to refuse to turn over that file or any portion
thereof.  The committee reiterates its view that the entire file
is "property to which the client is entitled," thereby
eliminating any necessity for a determination by anyone other
than the client as to what the client may need.  Furthermore,
such ownership of the file is irrespective of any earlier
provision of copies to the client.  LEO #ll7l; Scroggins v.
Powell, Goldstein, Frazier and Murphy, l5 B.R. 232, 24l (Bankr.
N.D. Ga. l98l), Rev'd on other grounds, 25 B.R. 729 (N.D. Ga.
l982).  See also Vargas v. United States, 727 F.2d 94l, 944 (l0th
Cir. l984), cert. denied, 469 U.S. 8l9 (l984).

Committee Opinion 
July 24, 1990