The lawyer also reminded the client that the statute of limitations would lapse in two weeks. The Bar confirmed that "since the file is the property of the client, the attorney must surrender the file on demand except where he may lawfully refuse to do so. Likewise, the law firm may not declare that all client files belong to the firm and that the withdrawing associate must share fees with the law firm. A lawyer taking over a practice should notify clients of their right to select another lawyer and give direction about the disposition of their files which should not be transferred without disclosure to the clients.
Here, the "non-refundable retainer" was improper "since funds which are entrusted to a lawyer by a client for the lawyer's services on a specific matter are deemed to be 'advanced legal fees' and belong to the client. At a minimum, the lawyer must advise the former client of portions of the file that belong to the client or for which no further fee is owed. The lawyer may be obligated to show the client the files if the client would otherwise be prejudiced.
Any copying charges are "subject to available legal remedies for collection. The Bar declines to determine if the employer or the employees are entitled to the file when the former hires a lawyer to represent the latter. Before destroying a file, the lawyer should offer to return any original documents or other client property, and should not destroy any documents the client might later need.
The Bar apparently did not provide specific guidance on whether the documents should be shredded or incinerated. Upon request, the lawyer must turn over the unexecuted will and the rest of the file to the deceased client's personal representative assuming no fees are owed.
If requested, a lawyer should retain originals but may charge the client for copying other materials given to the client. If the lawyer wants to make a copy for the lawyer's own use, the lawyer must pay for the copy and may not condition the release of the files upon receiving payment for the copy. Rule 1. Such a claim arises if a client fires the contingent fee lawyer without cause or the contingent lawyer justifiably withdraws. Such successive representations do not implicate simultaneous representation provisions such as ABA Model Rule 1.
In discussing ownership of work product, the committee reiterated that "the client owns the attorney work-product whether in tangible, documentary form or in the intangible provision of the attorney's expertise in having applied the law to the client's fact situation during the course of the representation.
A lawyer may advance costs only if the client agrees to repay them regardless of the litigation's outcome. The criminal defense lawyers may also agree to return such exculpatory evidence to the prosecutors "prior to the conclusion of [their] representation of the defendant.
Who Owns the Client File? By: Melissa E. The entire-file approach versus the end-product approach Under the entire-file approach, everything pertaining to the representation belongs to the client. Which approach should you take? Here are some of the key takeaways from R Ownership of the file is distinguishable from access to the file. There are no Michigan decisions suggesting that the client owns the file. In the context of other closely-analogous professions, Michigan courts have recognized that professionals provide services, not goods.
Can you charge for access to the file? Bottom line? Melissa E. Graves melissa. Prev Next. The principles apply to all authorised individuals solicitors, registered European lawyers and registered foreign lawyers , authorised firms and their managers and employees, and to the delivery of regulated services within licensed bodies.
Must — a requirement in legislation or a requirement of a principle, rule, regulation or other mandatory provision in the SRA Standards and Regulations. You must comply, unless there are specific exemptions or defences provided for in relevant legislation or regulations.
Should — outside of a regulatory context, good practice, in our view, for most situations. In the case of the SRA Standards and Regulations, a non-mandatory provision, such as may be set out in notes or guidance. These may not be the only means of complying with legislative or regulatory requirements and there may be situations where the suggested route is not the best route to meet the needs of a particular client.
However, if you do not follow the suggested route, you should be able to justify to oversight bodies why your alternative approach is appropriate, either for your practice, or in the particular retainer.
May — an option for meeting your obligations or running your practice. The Ethics Committee does not have the power to do that. R does give guidance as to how to answer these difficult questions until a more definitive answer is given by the Michigan Supreme Court. Michigan case law regarding records and other professional relationships e. Formal Ethics Opinion R is in accord with the majority of U. Moreover, Michigan Formal Ethics Opinions R-5 and R are consistent in their view that the ownership of the representation file is a matter of law, not ethics; neither of those formal opinions conclude that the file "belongs to" or is "the property of" the client.
To the extent that the informal opinions of the Ethics Committee have previously been based upon an erroneous legal proposition concluding global proprietary file ownership by the client, those informal opinions should be ignored. The ownership of the physical materials composing the file is to be distinguished from access to the information contained in them. While the physical record itself belongs to the lawyer or the law firm, the client is entitled to have access to that information made available for copying or inspection.
This distinction between ownership and access is consistent with the prevailing law of agency and fiduciary duty. A file record maintained electronically on computer hard disk or tape, or upon magnetic tape, microfiche, or microfilm need not be delivered to the client; the client is entitled only to access to the information contained on the physical media, NOT the "original" which belongs to the lawyer. See Formal Opinions R-5 and R File materials maintained on paper may be delivered to the client by means of photocopy or electronic format, so long as the information is legible and usable to the client.
Those parts of files assembled by the lawyer for the representation of a client "belong" to the lawyer or law firm; this includes attorney work product. The client may be entitled to the information contained in the attorney work product document if a reasonable need is shown. A minority give the client access only to the end product.
On the other hand, the client is entitled to the original if the client has a pre-existing proprietary right in the record, or the document has intrinsic value. For instance, if the client provided a business record, ledger, tape, computer media, or other such document to the lawyer, then this actual, physical property the original should be returned to the client; the lawyer may retain a copy, whether or not the client consents.
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