It seldom happens on a good day. After a period of declining civility in relations with a deadbeat client, they come to the office and demand that you give them THEIR file on the spot. Perhaps they threaten to sue you if you don't. Should you give it to them? Ask that they pay for copies first? Ask that they pay past due bills first? Shred incriminating documents? You might call your malpractice insurer, and here is what we would tell you.
Who Does the File Belong To?
The primary Texas case regarding access to client files in the absence of litigation between the attorney and client is Resolution Trust Corporation v. H_____, P.C., 128 F.R.D. 647 (N. D. Tex. 1989). The opinion does not explicitly say that the entire file belongs to the client, though that is certainly the direction that Judge Sanders' opinion was headed. The opinion holds that an attorney owes a fiduciary duty to the client and, as a result, cannot conceal any file documents from the client, even if there is no current dispute between the attorney and the client. His ruling extends to documents such as attorney notes and memoranda. Note that Rule 76a of the Texas Rules of Civil Procedure makes some discovery documents "court records" which neither the attorney nor the client can destroy. Disciplinary Rule 1.15(d) provides that an attorney "may retain papers relating to the client to the extent permitted by other law only if such retention will not prejudice the client in the subject matter of the representation." (Emphasis added). The primary circumstance in which "other law" permits an attorney to retain the file is when the client has not paid for legal services and the attorney asserts a lien on the file.
In some cases, prejudice to the client from the attorney's retention of the file will be apparent. For example, if the client is getting new counsel in the case and the file is needed to prepare adequately for a hearing scheduled in a matter of days, prejudice is likely. In general, prejudice to the client is arguable in many situations if the case is still active in some manner or actions can be taken to change the effects of the work of the attorney. Suppose, however, that the case is over, the client lost, and all appeal deadlines are over. Does it "prejudice the client in the subject matter of the representation" not to have the file to give to a new attorney so he can determine if you committed malpractice? The safest course of action is to make the file available to the client in some way. Otherwise, part of the factual presentation in the malpractice suit will be a recitation of how the attorney attempted to cover up his mistake by retaining the "client's" file.
Number and Copy -- Or At Least Catalog . . .
When we receive a notice of claim from an insured attorney, one of our first steps in investigation is often to review the file. In a surprising number of cases, our insureds have given the file to the client without retaining a copy. Simply giving the file to the client without retaining a copy is dangerous. The client may, either accidentally or on purpose, decide to prune or add to the file. If the attorney has not made a copy of the file, critical documents could be lost, added or altered. Under the H_____, P.C. case, the attorney is required to turnover the file to the client without having the client pay for copies. The attorney is permitted, however, to copy anything he or she may want at his or her own expense.
We suggest that you copy the entire file after having it "Bates Stamped," meaning each page has been numbered. This will enable you to catch deletions from, additions to, and alterations of the file in the event a suit is filed. In some cases, the cost of copying the file may seem prohibitive. If you simply can't afford Bates Stamping and copying, at the very least catalog the documents in the file with short descriptions of each document.
What You Can Pull From the File
Selectively destroying documents in the file prior to turning over the file to the client is tempting, but decidedly dangerous. In general, unless destruction of certain types of documents is done as part of a predetermined administrative policy, you run the risk of appearing to try to cover up if you hurriedly destroy some documents prior to turning them over to the client. If the client has requested the file, it is best not to destroy even those documents which could be destroyed under a proper administrative policy.
Proper administrative policies are those designed to destroy documents that are duplicative, unnecessary, or drafts. We do not mean to suggest that attorneys should always destroy unnecessary or draft documents. In some types of law practice they may show the thought and negotiation that went into a particular decision. If an attorney or firm has decided to destroy unnecessary and draft documents in all files on a uniform basis and that policy has been communicated to the client, then destruction of a particular document in conformance with the policy should not arouse suspicion.
Call Your Insurer
When you receive a request from a client for their file and you suspect they may be considering a claim against you, call your malpractice insurer. At TLIE, we give our insureds our opinion about how to handle the situation. In many cases, we will decide that the matter does not yet warrant continuing attention, but your notice is likely to be within the time limits required by the policy in the event the claim is ultimately pursued.
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