Legal Ethics Opinion No. 1418

             Files: Client Property--Contents of File

You have indicated that an attorney was court-appointed to
represent an individual in a criminal case.  You advise that,
throughout the presentation of the case and appeal through the
state court system, the criminal defendant was supplied with
copies of all correspondence, pleadings, briefs, and other
documents that had been prepared and filed in the case. 
Simultaneously, the attorney, fearful of possible allegations of
ineffective assistance of counsel and in anticipation of possible
further litigation, maintained a diary which set forth certain
observations in a timely manner during the course of the case.

Furthermore, you indicate that the client has now exhausted all
legal remedies and has filed a writ alleging, among other things,
ineffective assistance of counsel.  The client now asks that the
former appointed counsel provide him with the original of all the
documents at no cost, and includes, among his demands, that the
attorney produce any notes or diaries maintained by the attorney.

You have asked the committee to opine, under the facts you have
provided, (l) whether the court-appointed counsel, after the
conclusion of the case-in-chief, is required to provide to the
criminal defendant, upon demand, all documents, including diaries
or memoranda prepared in anticipation of possible ineffective
assistance of counsel allegations; (2) whether the cost of
producing the documents can be charged to the defendant; and (3)
whether the documents provided must be the originals.

The appropriate and controlling Disciplinary Rule related to your
inquiry is DR 2-l08(D) which provides, in pertinent part, that,
upon termination of representation, a lawyer shall take
reasonable steps for the continued protection of a client's
interests, including delivering all papers and property to which
the client is entitled while retaining papers relating to the
client to the extent permitted by applicable law.

The committee has earlier opined 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 the delivery
of the contents of a client's file to the client.  The committee
indicated that, rather,  "work product" 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.  Furthermore, the committee went
on to opine that, in relation to the issue of ownership of a
client's file, where no fees are outstanding, "work product"
includes attorney's notes, internal memoranda and multiple
drafts, and any other documents which lead to final documents or
which resulted in advice given as to a particular matter.  The
committee found that such ownership of the file was irrespective
of any earlier provision of copies to the client.  See LEO #l366.

Thus, with regard to the first question you raise, the committee
is of the opinion that, if the materials requested are
generically related to the attorney's practice, e.g., if the
diary referenced is maintained as a log of activities conducted
with or on behalf of all the attorney's clients, such materials
would not be part of any specific client's file.  Therefore,
those materials would need to be provided to the client only if
applicable rules of discovery require and if the appropriate
procedures have been followed.  If, however, the diary referenced
was separate and germane only to the specific client, or if the
materials were dictated or prepared in relation to the client's
specific case, they must be provided to the client who requests

With regard to the question related to costs of producing the
documents, the committee has earlier opined that it is improper
for an attorney to condition the release of a client's file upon
payment of copying charges, where the copies are for the benefit
of either the attorney or the client, absent a prior agreement to
the contrary.  See LEO #ll7l.  The committee is of the opinion
that, in the facts you present, where the attorney has been
court-appointed, any such agreement is not relevant since all
costs would be borne by the Commonwealth.  Thus, the committee
opines that any costs incurred in the production of any documents
which must be provided to the client may not be charged to the

Finally, the committee is of the view that your question
regarding whether the documents provided must be originals rather
than copies requires a legal determination, to be made under any
applicable discovery and/or evidentiary rules, which is beyond
the scope of the committee's authority.

Committee Opinion
May 14,1991