If you've ever switched dentists, you may have faced the awkward situation of asking your old dentist to forward your X-rays and records to your new dentist. Switching attorneys presents a similar problem. If you are thinking about leaving your old lawyer for a new one—and there are several reasons you might choose to do so—one question you're likely to ask yourself is, "What happens to the files that my existing attorney is holding for me?"
Particularly if you're switching attorneys in the middle of a dispute, court case, or other ongoing legal matter, you want your new attorney to have access to these important documents.
Ex-Attorney's Obligation to Return Your Files
Upon request, an attorney is required to promptly hand over the contents of your case files. Under the American Bar Association's Model Rule 1.16(d) (which has been adopted by most U.S. states), an attorney must, to comply with ethical and professional standards, "[surrender] papers and property to which the client is entitled and [refund] any advance payment of fee or expense that has not been earned or incurred" as soon as the representation is terminated.
Even in states that haven't adopted these model rules outright, you're likely to find a parallel rule within the state bar association's own standards for attorney conduct. Here, for example, is the relevant California rule:
A member whose employment has terminated shall: (1) Subject to any protective order or non-disclosure agreement, promptly release to the client, at the request of the client, all the client papers and property. "Client papers and property" includes correspondence, pleadings, deposition transcripts, exhibits, physical evidence, expert's reports, and other items reasonably necessary to the client's representation, whether the client has paid for them or not; and (2) Promptly refund any part of a fee paid in advance that has not been earned. This provision is not applicable to a true retainer fee which is paid solely for the purpose of ensuring the availability of the member for the matter.
(California Rules of Professional Conduct, Rule 3-700 Termination of Employment.)
Practical Aspects of Getting Your Files Back From Your Attorney
You can ask your lawyer to send the files directly to you or your new attorney, in which case the safest way to make the request is in writing, via letter or email. Alternatively, you can pick up a copy of your file in person (but contact the office first, so that it has time to locate and review the contents of your file and make a copy for you).
Or, once you've hired a new lawyer, he or she can assist in getting your file. (It's worth hiring a new attorney as soon as possible, particularly if you've got a case pending with a court or administrative agency. Your new attorney will want to communicate with that body and make sure it sends any new correspondence, such as motions from the opposing party, directly to the new attorney.)
Your attorney should not charge you a fee for copying the documents in your file. This is a valid and necessary step; the attorney will need create a duplicate set that he or she retains for record-keeping reasons. You may, however, have to pay shipping expenses.
In addition, realize that the attorney does not have a legal right to hold files hostage because you owe him or her money. (Any bill collection issues will need to be separately addressed between the two of you.) If the attorney fails to turn over your documents in a timely manner, you can file a complaint with the local bar association or state disciplinary committee.
"Factual Files" Versus "Work Product"
As a client, you're absolutely entitled to factual work product concerning your case, such as deposition testimony, correspondence, and court filings. These materials are crucial to getting your new lawyer up to speed on a case. For example, if you are in the midst of litigation but trial has not yet occurred, you will want all discovery, motions filed, and documents produced by the other side.
However, laws vary from state to state as to whether clients are entitled to more opinion-oriented documents (such as attorney notes and legal theories) within the attorney's files. Some states, such as California, have ruled that the client is not entitled to "absolute work product." These would include documents that reflect the attorney's impressions, opinions, and legal theories, as well as legal research.
Other jurisdictions, such as Washington, DC, say that the client must receive the entire file, including attorney notes, opinions, and strategy information. Even if your state doesn't require your attorney to provide you with copies of the absolute work product, you can still request that your attorney provide it to you. The attorney doesn't have to honor that request, but if your parting is amicable, there's a chance that he or she will give you the requested materials anyway.
Avoiding Disputes at Critical Stages of Litigation
No one likes being fired, including your lawyer. If you are in the midst of a heated legal dispute, and concerned about getting your matter transferred to a new attorney quickly, the last thing you need is a squabble with your old lawyer over your file.
Be respectful of the attorney and professional in your communications; emphasize that the disagreement and decision are not personal.
To the extent that you have unpaid legal bills, consider paying those quickly in order to eliminate any possibility that your lawyer may be intentionally slow in transferring the files. You may feel that your old lawyer doesn't deserve any more money. But you need to weigh these costs against the harm that could be done to your legal interests if your old lawyer acts in bad faith and holds documents hostage. It might be better to pay your bill in order to facilitate a clean break of the relationship.