What Not To Do When A Client Requests Their File

Whether a client is changing counsel, had a change of heart about pursuing their case, or any other reason, there’s a clear set of guidelines that lawyers must follow in order to avoid a complaint or Bar grievance when a client requests their file.

Failure To Provide Can Lead To Complaints

Lawyers’ failure to timely provide a client’s file has generated a number of Georgia Bar ethics hotline and consumer assistance calls. Complaints about this failure resonate through Bar grievances. Why would a client request their file? If they’re still represented, maybe they’re unhappy with the representation. If the representation is over, they could simply want the information for posterity, or for their tax preparer. More likely, the client wants another lawyer to review the file and advise the client whether the client has a legal malpractice claim or Bar grievance.

Because of this last point, lawyers tend to go on the defensive when clients request their file. Sometimes lawyers try to hold the file hostage. They might refuse to provide all or part of it, unless the client pays unpaid fees or expenses. Or, the lawyer might want to review and “scrub” the files, to remove those Post-It notes that say what they really think about the client or their case.

Whatever the reason, by holding the file beyond a reasonable time to copy it, a lawyer is taking an unnecessary risk. For one thing, this is clearly against the Georgia Rules of Professional Conduct:

• Rule 1.16(d)
• Formal advisory opinion (FAO) 87-5

Both Rule 1.16(d) and FAO 87-5 direct that a lawyer cannot hold a file hostage for any reason, even to secure payment. As a general rule, lawyers are required to hold the client’s interests paramount to their own. Furthermore, a lawyer may not prejudice the client’s interests. Lawyers must also take all reasonable steps to mitigate foreseeable negative consequences to the client. That doesn’t necessarily mean that all requests must be complied with immediately, of course.

Sometimes, a lawyer may want to keep the file for a reasonable time to copy it, especially if there is a potential for a Bar grievance or legal malpractice lawsuit. The lawyer can request that the client incur the expense of the cost to physically copy the file. However, the lawyer can’t ultimately require this payment. Why? Because at the end of the day, the file is the client’s property, not the lawyer’s. Also, generally speaking, keeping electronic copies is easy and very cheap—so all lawyers should do it!

Does A Request For A File Trigger A Duty To Notify Your Insurance Carrier?

Short answer: it depends upon the language of your professional liability policy. Consider the Georgia case of Simpson & Creasy, PC v. Continental Casualty Co., 770 F.Supp.2d 1351 (2011), where the court held that a client’s request for their file from the former lawyer required the lawyer to notify his malpractice insurance carrier. Why? Because under the lawyer’s professional liability policy, the client’s request for the file was interpreted to be a “claim,” under the policy’s definition of “claim.” In the end, the client brought a legal malpractice claim against the insured lawyer, and the court allowed the insurance carrier to escape having to cover the claim. Lawyers, beware! If in doubt, you should err on the side of caution by advising your carrier of the potential claim or grievance.

General Best Practices For Lawyers To Keep In Mind

• Keep your files clean. Never write anything in a file that you would not want to be questioned about later under oath.
• Keep your practice procedures clean, organized, and efficient—run your practice as if all your clients will request their files. You do not want to take weeks or longer to “organize” the file for the requesting client.
• Don’t hold files hostage. Turn them over without additional charges and in a timely fashion after making a copy to keep. Keeping a copy of the file to potentially defend yourself is a necessity. 
• Have your clients sign a receipt when they pick up their file materials or send clients a transmittal letter with the file for delivery by courier, certified post or delivery requiring signature. How much or how little you put in the file transfer letter depends upon the circumstances.
• Check your malpractice policy language to ensure that you’re providing adequate notice of a “claim” or “incident” to your carrier under the specific language of your policy.
• Remember that many malpractice insurance policies have disciplinary defense coverage, which may not require a deductible payment. Also, some carriers are pro-active and will want to get in front of a claim, in a “claim mitigation” manner. This can be very helpful, obviously.

Chandler Law has experience on both sides of this issue. We regularly represent lawyers who have had grievances and malpractice claims filed against them by former clients. We’re happy to discuss any potential legal malpractice or Bar grievance matter with you. Even better, we like advising lawyers on ways to proactively protect their law firm practice from client complaints and grievances.