The ABA Standing Committee on Lawyers’ Professional Responsibility recently clarified what files, papers, and property must be surrendered to the lawyer’s client:
“Model Rule 1.15 provides that a lawyer must safeguard a client’s property and promptly deliver it to the client upon the client’s request. By its terms, Rule 1.15 applies to a client’s and third party’s money and to ‘other property’ that comes into a lawyer’s possession in connection with a representation. Although not specifically defined in the Rule, ‘other property’ may be fairly understood to include, for example, (a) tangible personal property, (b) items with intrinsic value or that affect valuable rights, such as securities, negotiable instruments, wills, or deeds and (c) any documents provided to a lawyer by a client….
“The Model Rules do not define the ‘papers and property to which the client is entitled,’ that the lawyer must surrender pursuant to Rule 1.16(d)….
“A majority of jurisdictions follow what is referred to as the ‘entire file’ approach. In those jurisdictions, at the termination of a representation, a lawyer must surrender papers and property related to the representation in the lawyer’s possession unless the lawyer establishes that a specific exception applies and that certain papers or property may be properly withheld. Commonly recognized exceptions to surrender include: [i] materials that would violate a duty of non-disclosure to another person; [ii] materials containing a lawyer’s assessment of the client; [iii] materials containing information, which, if released, could endanger the health, safety, or welfare of the client or others; and [iv] documents reflecting only internal firm communications and assignments… check these guys out.
“Other jurisdictions follow variations of an end-product approach. These variations distinguish between documents that are the ‘end-product’ of a lawyer’s services, which must be surrendered and other material that may have led to the creation of that ‘end-product,’ which need not be automatically surrendered. Under these variations of the end-product approach, the lawyer must surrender: correspondence by the lawyer for the benefit of the client; investigative reports and other discovery for which the client has paid; and pleadings and other papers filed with a tribunal. The client is also entitled to copies of contracts, wills, corporate records, and other similar documents prepared by the lawyer for the client…. Administrative materials related to the representation, such as [a] memoranda concerning potential conflicts of interest, [b] the client’s creditworthiness, [c] time and expense records, or [d] personnel matters, are not considered materials to which the client is entitled under the end-product approach. Additionally, [e] the lawyer’s personal notes, [f] drafts of legal instruments or documents to be filed with a tribunal, [g] other internal memoranda, and [h] legal research are viewed as generated primarily for the lawyer’s own purpose in working on a client’s matter, and, therefore, need not be surrendered to the client under the end product approach. …. However, when the lawyer’s representation of the client in a matter is terminated before the matter is completed, protection of the former client’s interest may require that certain materials the lawyer generated for the lawyer’s own purpose be provided to the client.”
ABA Formal Opinion No. 471 (Jul. 1, 2015).