Last week the Oregon State Bar issued OSB Formal Opinion 2017-192, which supersedes OSB Formal Opinion 2005-125. This is the second opinion in the last six months to address the subject of client files.
Opinion 192 provides answers to the following questions:
- What is the “client file?”
- Is the client entitled to everything? Are there any exceptions?
- Do lawyers have the right to retain their own copy of the file?
- Is it ethical to charge clients for the cost of duplicating file material?
- In what form may the file be produced?
- When may a lawyer charge for the cost of locating and segregating file documents?
- May a lawyer charge for extracting data from law firm software?
Interesting questions, some of which present issues of first impression. Let’s break it down.
What is the “client file?”
A client file is “the sum total of all documents, records, or information (either in paper or electronic form) that the lawyer maintained in the exercise of professional judgment for use in representing the client.” OSB Formal Opinion 2017-192.
Is the client entitled to everything?
The lawyer is obligated to deliver the “entire client file.” Under OSB Formal Opinion 2017-192 the “entire client file” includes:
- Documents and property provided by the client
- Litigation materials (pleadings, memoranda, discovery materials)
- All correspondence
- All items that the lawyer obtained from others, including expert opinions, medical or business records, and witness statements
- All electronic documents, records, and information that the lawyer maintained for use in the specific client matter, including email, word processing documents on a server, audio files, digital photographs, and text messages
- Lawyer’s notes (see below)
- Internal memoranda that may constitute “attorney work product.”
This sounds like everything, but it isn’t.
There are seven identified exceptions to producing the entire client file. These are discussed below.
What may a lawyer withhold and when?
Exception 1 – Withholding the entire file – attorney fee liens
A lawyer may have the right to withhold the client file in its entirety if she has a valid attorney fee lien. See Helen Hierschbiel, Difficult Paradigm: Are lien rights absolute? (Whether this is ever a good idea would require another blog post. Suffice to say, if you stand on your statutory right to assert a lien, don’t be surprised when your client files an ethics complaint.)
Exception 2 – confidential information belonging to another client
Lawyers are not obliged to release documents or information to which the client is not entitled. For example, a legal memo or document from a prior case used for reference in the current client file. In fact, releasing such information would be a breach of the former client’s confidentiality.
However, if the lawyer’s reliance on the memo or document is “relevant to a dispute between current lawyer and client,” the lawyer may be obliged to produce a redacted version of the memo or document.
Practice Tip: Pulling memos, documents, or pleadings from one file to use in another is a very common practice, but do yourself a favor. Save this content as non client-specific legal research, templates, or forms to the extent possible. Sanitize and redact once, then save the content to reuse whenever needed.
Exception 3 – lawyer notes or communications relating to the lawyer-client relationship (discipline and malpractice)
Emails and documents showing that the lawyer consulted counsel to explore his exposure to discipline or malpractice liability are “not part of the client file and need not be produced to the client or provided during a change in representation.”
Practice Tip: Always keep a separate file for documents or communications that fit within this exception.
Exception 4 – Documents created for internal use by the lawyer or law firm
Documents “created for internal use primarily for the lawyer’s own purpose” need not be produced to the client. These include:
- Internal work assignments
- Routine conflicts review
- Client’s creditworthiness
- Time and expense records
Practice Tip: Before you whoop and holler over your ability to withhold “time and expense records,” be aware you still have an obligation to provide clients with an accounting of their funds under Oregon PRC 1.15-1(d).
Also, while they may not be part of the “client file” under this opinion that doesn’t mean that you are scot-free. Picture a fee dispute where the time and expense records differ signifcantly or relevantly from your client accounting. Or a legal malpractice claim where the only proof of a key client conversation appears in a time entry, not in your client billings. In either circumstance, it is conceivable that your time and expense records would be discoverable. See Footnote 3 of the opinion which discusses the broader standards that apply under ORCP 36 or FRCP 26.
Exception 5 – Metadata and information contained in law firm software
Electronic documents or information “that could be construed as computer metadata, or which would otherwise be too burdensome and expensive to identify, locate, and produce in a readable or accessible format” need not be produced as part of the client file.
What kind of documents or information could be “too burdensome and expensive to identify, locate and produce” besides metadata? Client data contained in proprietary software, such as a docketing program. Discussion aside, the opinion suggests that “to the extent a summary or report can be created by the software, the lawyer should include that as part of the client file.” Could a client be charged for the cost of extracting or converting data from such a program? No, unless the fee agreement provided differently. See the discussion below.
Practice Tip: Be careful if you rely upon this exception for anything other than metadata or client information contained in proprietary software.
Remember that email and text messages are expressly part of the client file under this opinion. If you don’t have a good system for capturing this type of communication, you should make it your number one priority. I’ve written many times about capturing email as part of the client file. See Part 1 and Part 2 of this article.
If you text frequently with clients, take a long, hard look at Zipwhip. This service enables text messages to be received and sent using your law office’s existing landline or toll-free number. Text conversations can be saved as a PDF document in the client’s folder, which ensures compliance with OSB Formal Opinion 2017-192.
Exception 6 – Substantive prohibitions against delivering legal documents to clients
If substantive law or court order prohibits delivery of documents in whole or in part to a client, the law or order must be obeyed.
Exception 7 – disclosure and lack of objection
The final stated grounds for producing less than the entire client file is based on “appropriate disclosure” and lack of client objection. This makes perfect sense. If the client agrees to accept less than the entire file, it should be the client’s choice.
Practice Tip: If you’re going to rely on “appropriate disclosure” and the lack of an objection on the client’s part to producing the entire file – document it and create a clear trail of what you did provide. This may be important later if the client misremembers what you did or did not produce. (See Footnote 6 to the opinion.)
Could there be other classes of documents or information that may be withheld? Yes. Anything is possible, and the opinion acknowledges this with the following admonition:
“As a general proposition, however, unless there is a valid reason for not providing documents as discussed above, all documents from the client file should be provided.”
Do lawyers have the right to retain their own copy of the file?
“A lawyer has a right to retain a copy of the client file,” no ifs, ands, or buts.
Practice Tip: Occasionally business or corporate clients may pressure lawyers to surrender or destroy their copy of the client file. Point these clients to this opinion. Better yet: address this subject up front in your written engagement letter/fee agreement to avoid hassles later.
Can lawyers charge clients for duplication expenses?
Lawyers cannot charge clients for:
- Copies of original documents given to the lawyer by the client
- Copies of original documents prepared by the lawyer for the client and held by the lawyer at the client’s request (for example: original wills or trust agreements)
These copies must be made at the lawyer’s expense. This is in keeping with former opinion 125. As to other documents which lawyers may scan or photocopy, presence of a fee agreement is key:
Fee agreement provides for duplication charges
If you were smart enough to cover this ground in your fee agreement, you can bill the client for photocopy and scanning costs. The original document exceptions discussed above still apply. (Mini tip: if you withdraw or the client fires you mid-matter, read Footnote 8. Your right to enforce payment of the cost of duplicating the file may have to yield, temporarily, to the client’s need to have the file for an ongoing legal matter.)
No fee agreement or fee agreement provides client is entitled to copies without separate charge
If you did not reserve the right to separately charge for duplication expenses in your fee agreement, then the client is entitled to one copy, without charge, of any documents not previously provided.
Duplicate copies of documents or information previously sent
In either case, if a client wants duplicate copies of documents or information previously provided, “the lawyer is entitled to charge for those costs.”
Practice Tip: Address the topics of copying documents and charging for duplicates in your fee agreement.
In what form may the file be produced?
OSB Formal Opinion 2017-192 briefly revisits the ground covered by its predecessor: OSB Formal Opinion 2016-191. You’ll recall that opinion 191 spoke to a lawyer’s ethical obligations in keeping or producing an electronic-only copy of a file. To bottom-line it for purposes of Opinion 192, providing clients with an electronic copy of their client file is fine, if they can access it. If they can’t, you are obliged to provide the file in a format “that can be accessed or read by the client.” For some, this may mean producing a paper file. See this post for a complete discussion.
When may a lawyer charge for the cost of locating and segregating file documents?
A lawyer may not charge:
- For the cost of locating or segregating documents the lawyer chooses not to produce
- A “clearly excessive” or “unreasonable” amount for producing the client file.
A lawyer may charge for the cost of:
- Locating and segregating documents the lawyer is prohibited from producing (see the discussion above regarding exception 6).
- Locating and segregating documents when the client has requested only certain portions of the file
- Reproducing documents or information already made available to the client
- Costs associated with production of a file “to the extent the lawyer could have charged the client for the same work if the request had been made during the lawyer-client relationship.” In other words, did you allow for billing the client for such costs as part of your original fee agreement? If yes, and so long as you aren’t passing on the cost of segregating documents you don’t want to produce, you’re golden.
What about the cost of extracting or converting data from law firm software, like a docketing program?
As mentioned above, extracting or converting client data contained in proprietary software may fit the “too burdensome” exception. However, if produced, a lawyer cannot require the client to bear this cost “absent an agreement to the contrary.” Translation: like so many other points, you need to cover this in your fee agreement.
How does all of this square in the event of a legal malpractice action?
That, my friends, is a good question! Up to this point, we’ve only discussed a lawyer’s ethical obligations, not the standard that might apply in discovery should a legal malpractice action occur. If you have concerns about file production in conjunction with a claim or suit brought by a client, contact the Professional Liability Fund.
OSB Formal Opinion 2017-192 is a lot to chew. And as noted above, it is one of two opinions issued in the last six months governing client files. I hope this post has helped, at least a bit. I am planning a CLE in June to address the issues raised by this opinion and its predecessor. Watch my blog for an announcement.
All Rights Reserved Beverly Michaelis 2017.