The files belong to the client

by Diane Karpman

The file belongs to the client; it is his or her property, no matter how many copies of documents you have sent during the course of representation. Rule 3-500 requires that copies of all significant documents be sent to the client (1997).

Rule of Professional Conduct 3-700(D)(1) holds that if your employment is terminated, you have an affirmative obligation to "promptly release to the client, at the request of the client, all the client papers and property."

This includes "correspondence, pleadings, deposition transcripts, exhibits, physical evidence, expertís reports and other items reasonably necessary to the clientís representation," whether the client owes you money or not.

A complete copy of the files, no matter how voluminous, should be made: if the client is substituting you out; if you are aware of an actual problem in terms of your representation; if you sense (either physically or internally) a potential problem.

Listen and believe in your intuition.

The client cannot be charged for these copies (absent a possible consent to pay for copies in the initial fee agreement), since they are being made for your own protection. You canít ordinarily charge a client for services for your own benefit (i.e., drafting the fee agreement, your statements, etc.).

The copies are your personal insurance should a potential problem become actual and generate a malpractice claim or discipline investigation.

"Promptly" is dependent upon the status of the clientís case, the goal being the avoidance of foreseeable prejudice to the client. Therefore, if the case is immediately going to trial, you may have to pay for messenger services.

On the other hand, if the matter is dormant or relatively quiet, you are only required to release the materials, i.e., make them available to be picked up or allow the client to arrange for delivery or transportation of the files.

File chaos caused by employeesí misconduct resulting in a six-month delay in transferring the file violates this rule. In the Matter of Sullivan (review Dept. 1997) 3 Cal State Bar Ct. Rptr. 608.

Prudent practice mandates that the client be requested to sign a receipt for each file. Should a subsequent proceeding occur, the key document inevitably will have somehow just "disappeared."

If a disgruntled client refuses to sign, have a staff person witness the transfer and document it at that time.

For a discussion of client file destruction (which is permitted if appropriate arrangements and notice procedures are established and given in the initial fee agreement, does not involve documents of intrinsic legal significance, and notification procedures are followed), see Los Angeles County Bar Assn. Ethics Opinion 475.

Instead of receiving typewriters or computers as presents for law school graduation, we should have requested stock in file storage companies. Take care of this issue in advance in your fee agreement to avoid additional file storage costs in the future.

Diane Karpman of Los Angeles is a discipline defense lawyer.