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. Anwalt Hattingen