Bar Counsel Notes: Returning "the file" - copying

Returning "the file" - copying.

Frequently, a client fires the attorney and hires replacement counsel. Successor counsel then requests "the file" from the discharged lawyer. Who is entitled to the original of the file? According to Opinion Nos. 51 and 120 issued by the Professional Ethics Commission on December 5, 1984 and December 11, 1991, the client and/or replacement counsel are entitled to the original. Who pays for the file copy? Those opinions also state that the attorney who wants the copy must pay for it because the copy benefits him or her, not the former client or replacement counsel. For consideration of general file retention issues, reference should also be made to newly issued Opinion No. I87 as well as the Court's recently adopted Bar Rule 3.4(a)(4) which deals with issues of file retention and destruction.

*Disclaimer: The Informal Ethics Advisory Notes from Bar Counsel are intended as outreach by the office of Bar Counsel for the use and benefit of the Maine bar. These scenarios are drawn from actual telephone calls received by the attorneys in the office of Bar Counsel in the course of providing informal advice on the Code of Professional Responsibility, known as Bar Counsel's "Ethics Hotline." The particular advice in each case is limited with reference to the particular factual situation related by the inquiring attorney who must be inquiring about his or her own conduct or the conduct of a member of his or her firm. We do not provide any advice to one attorney about the conduct of another attorney unless they are members of the same law firm. In the telephone opinions, we usually explore and discuss additional factual variables. However, I have attempted to pare down these factual scenarios to make the email newsletter more readable and useful in a general sense. Obviously, that creates the risk that slight variations on the facts, to a learned reader, may give rise to a different analysis and conclusion.