Turning Over a Client’s File — the Safe Way
November 17, 2016
Lawyers in North Carolina know that a client’s file belongs to the client. Even if you copy the client with all correspondence or court filings along the way, when the representation ends, the client is entitled to a copy of their entire file, if requested. Rule 1.16(d). You need not turn over your personal notes, internal firm memoranda or unfinished work product, but just about everything else must be turned over to the client. CPR 3, RPC 169. What if the client asks that you provide the client file to a third person, a friend or a relative? Before you simply send the client’s file with another person at the client’s direction, slow down and consider whether it is in the client’s best interest to do so.
Yes, the client has the authority to direct where his file should be sent at the termination of your representation, but you, as the lawyer, have an obligation to advise the client as to what is in his best interest. Without your guidance, the client can’t make an informed decision. For example, suppose the client is being represented by another lawyer on appeal. At the conclusion of your representation, the client has directed that you give his entire file to his sister. Appellate counsel, however, will likely need your file to represent the client’s best interests. Will the client’s sister maintain and keep the file in a manner that will assist subsequent counsel? If the file is electronic, is this person responsible enough to keep track of the flash drive? If the sister opens the client file on her computer, which is accessible by everyone in her household, has the privilege been waived? Certainly, confidentiality has been compromised.
Before you simply follow your client’s directive, communicate with the client, and explain why it is in the client’s interest for the file to be transferred directly to subsequent counsel or to the client. Certainly, if there is no appeal, the client’s matter is not of a highly sensitive nature, and/or the client is unavailable to come pick up the file, there may be very good reasons to give the file to someone of the client’s choosing. But before you send the file off, have a conversation with your client. Then, confirm the client’s directive about who gets the file in writing, after you have discussed any possible risks.