You have represented a client in a Collaborative Law case. Your whole professional team has done its best. At the end of the day, though, the parties have decided in good faith that they are no longer willing to negotiate and need a court to provide them with clarity. Your client pays you in full, but then asks for a copy of her files. What documents do you need to turn over? Do they include the analysis of the parties’ rights and obligations you prepared for an offline conversation with the other lawyer? Does it not seem inconsistent with the whole notion of a Collaborative process to turn over a roadmap for a lawsuit to the next professional in line? You are especially mindful of Standard 5.5 of the International Academy of Collaborative Professionals’ Ethical Standards for Collaborative Practitioners, which calls on you to avoid contributing to the conflict of the client.
There are two new developments to give us guidance. On July 1, 2015, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility released Formal Opinion 471, “Ethical Obligations of Lawyer to Surrender Papers and Property to Which Former Lawyer is Entitled.” On the same day, a new version of the Massachusetts Rules of Professional Conduct became effective, which preserved a deviation from the ABA Model Rules.
The ABA opinion notes that there are two lines of cases, the more common “entire file approach,” under which a lawyer must turn over the entire file with only a few commonly recognized exceptions, and the “end product approach,” in which a client is entitled to the end product of a lawyer’s work but not necessarily all the documents that lead up to it. The opinion then explores some of the nuances of these definitions. For instance, documents often do not need to be disclosed under the entire file approach if disclosure would violate a duty to a third person, such as private attorney form files used in drafting documents.
Massachusetts follows a version of the minority rule, the end product approach, which is embodied directly in the text of the Commonwealth’s variation of the Rules. Rule 1.16(e) is a holdover from the former Code of Professional Conduct. It states that a lawyer must turn over the following to a client at the end of representation:
“(1) all papers, documents, and other materials the client supplied to the lawyer. The lawyer may at his or her own expense retain copies of any such materials.
“(2) all pleadings and other papers filed with or by the court or served by or upon any party. The client may be required to pay any copying charge consistent with the lawyer’s actual cost for these materials, unless the client has already paid for such materials.
“(3) all investigatory or discovery documents except those for which the client is then obligated to pay under the fee agreement but has not paid, including but not limited to medical records, photographs, tapes, disks, investigative reports, expert reports, depositions, and demonstrative evidence. The lawyer may at his or her own expense retain copies of any such materials.
“(4) if the lawyer and the client have not entered into a contingent fee agreement, the client is entitled only to that portion of the lawyer’s work product (as defined in subparagraph (6) below) for which the client has paid.
“(5) if the lawyer and the client have entered into a contingent fee agreement, the lawyer must provide copies of the lawyer’s work product (as defined in subparagraph (6) below). The client may be required to pay any copying charge consistent with the lawyer’s actual cost for the copying of these materials.
“(6) for purposes of this paragraph (e), work product shall consist of documents and tangible things prepared in the course of the representation of the client by the lawyer or at the lawyer’s direction by his or her employee, agent, or consultant, and not described in paragraphs (2) or (3) above. Examples of work product include without limitation legal research, records of witness interviews, reports of negotiations, and correspondence.
“(7) notwithstanding anything in this paragraph (e) to the contrary, a lawyer may not refuse, on grounds of nonpayment, to make available materials in the client’s file when retention would prejudice the client unfairly.”
In other words, if the client has paid for “work product” in a Collaborative matter, the lawyer must turn it over. However, even though the definition of “work product” broadly includes “documents and other tangible things” produced by the lawyer in the course of representation, the examples include only end-product items. What does this mean? You must turn over:
-A written analysis you have prepared at the client’s request, whether you have previously sent it to the client or not; and
-Legal research you have done as part of your analysis
The Massachusetts rules do not specifically address a lawyer’s personal notes, drafts or internal memoranda, although the Opinion notes that other these items need not be disclosed in other jurisdictions that follow the end product rule. It is unclear which line of reasoning the Supreme Judicial Court would follow. In the absence of specific direction, the better approach may be to tread lightly: consider carefully what you put in writing, since you may need to turn it over to successor counsel.
Jeffrey Fink ( http://www.jfinklawadr.com ) is an attorney in Wellesley, Massachusetts whose practice includes mediation, collaborative law and other approaches to resolving family and business disputes.
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