Ethics Corner Article

New Hampshire Bar News – May 18, 2012

Dear Ethics Committee: After two years of litigation, my client has obtained new counsel and terminated my representation of him. He has asked that I copy his entire file for him to pick up. Is he entitled to the client file I have created? If so, must I produce everything in the file? What about emails? May I charge him for copying?

Your assumption that this is your file has led you to ask the wrong questions. The client’s file is not your property. The original file belongs to the client, and, because he requested his file, you must provide it to him. If you wish to keep a copy for yourself, you may do so, but, as the New Hampshire Supreme Court concluded in Averill v. Cox, 145 NH 328, 339–40 (2000), unless it is “clearly indicated” in your fee agreement or other written agreement that the client will pay the costs of copying, you (the attorney) must bear the expense of copying. See “Clients Are Entitled To Their Files,” NHBA Ethics Committee Practical Ethics Article, December 1998, for an in-depth discussion of the topics discussed herein.

The issue of ownership was settled in Averill. After considering the law in other jurisdictions and Rule 1.16(d) of the New Hampshire Rules of Professional Conduct, the Court concluded “that a client’s file belongs to the client, and upon request, an attorney must provide the client with the file.”

As for whether you need to produce every paper in the file, the Averill Court noted the distinction that exists in some jurisdictions between “end product” that is the property of the client and “work product” that is the property of the attorney. However, because the attorney in the Averill case had not argued for such a distinction, the Court left for another day whether it would “delineate between documents” in the client file, but the Court did “not rule out the possibility that in certain situations, clients may not be entitled to the entire file.”

Prior to Averill, the Ethics Committee (Advisory Opinion #1986-87/1) addressed the enforceability of a fee agreement that provided that the attorney’s “personal notes” may be withheld by the attorney. The Committee noted that while no Rule of Professional Conduct or other standard prohibited a fee agreement from excluding certain categories of information such as an attorney’s personal notes or work product from the client’s file, any such carve-out is circumscribed by the attorney’s duties under Rule 1.15(b) (now Rule 1.15(f)) to “promptly deliver to the client any funds or other property that the client is entitled to receive” and Rule 1.16(d) “to take steps to the extent reasonably practicable to protect the client’s interest, such as . . . surrendering papers and property to which the client is entitled.” Accordingly, a carve-out for “personal notes” was deemed too broad, and the Committee suggested that the exclusionary language read “my personal notes which you do not need to protect your interests in the case.”

You asked about whether you need to turn over emails. The Ethics Committee stated in an advisory opinion (#2005-06/3) that electronic communications such as emails and electronic versions of documents prepared for a client are parts of the client’s file and must be produced.

This conclusion was reached after considering the legal community’s increased reliance on electronic communications and records, as well ABA Model Rule 1.0 (not then adopted in New Hampshire) that defines a “writing” as including emails. (NH Rule 1.0 (adopted July 25, 2007) now defines a “writing” as including an email.)

The Advisory Opinion concluded that an attorney’s obligation to produce electronic files is not tempered by any burden it imposes on the lawyer. Rather, it is the attorney’s responsibility to manage the burden through means such as word search functions that are used to manage discovery.

The Ethics Committee provides general guidance on the NH Rules of Professional Conduct with regard to a lawyer’s own prospective conduct. New Hampshire lawyers may contact the Ethics Committee for confidential and informal guidance by emailing the Ethics Committee Staff Liaison. Brief ethics commentaries based upon member inquiries and suggestions will be published monthly in the NH Bar News.