Question 1: Where an attorney is departing a law firm and has jointly represented two clients in a matter using a single file, and only one of the clients directs the firm to transfer the closed file to the departing attorney, may the firm comply with the client’s request?
Question 2: If so, who bears the cost of copying the file?
Answer 1:  According to Missouri Formal Opinion 115, the file belongs to the client, cover to cover, with limited exceptions not applicable here.  Upon termination of the representation, an attorney is obligated to surrender papers and property to which the client is entitled.  Rule 4-1.16(d).  In the absence of a client request or another agreement with the client, a lawyer shall securely store the file in compliance with Rule 4-1.22.  Where two or more clients have one file in common, the lawyer or firm who is custodian of the file must continue to comply with the custodian’s obligation under R. 4-1.22.  In response to a file request to the firm from one client only, the firm may release a copy of the file’s contents to the requesting client or to the departing attorney per the client’s direction and maintain the original file per the Rule.
Answer 2: The Rules of Professional Conduct do not address the issue of who bears the cost of copying a file under these circumstances.  If a lawyer in the firm is making a copy of a file for the lawyer or firm’s own use or protection, the lawyer or firm must bear the costs of copying the file.  Mo. Formal Op. 115.  If the client file becomes the subject of a dispute between the jointly represented clients, Rule 4-1.15(e) requires the lawyer or firm to distribute any portion of the file as to which there is no dispute and hold the disputed portion separately until the dispute is resolved.  If the dispute is not resolved within a reasonable period of time, the lawyer or firm may file an interpleader action.  See, e.g., Mo. Informal Ops. 990152 and 990150.

Informal Opinions are ethics advisory opinions issued by the Office of Legal Ethics Counsel to members of the Bar about Rule 4 (Rules of Professional Conduct), Rule 5 (Complaints and Proceedings Thereon), and Rule 6 (Fees to Practice Law) pursuant to Missouri Supreme Court Rule 5.30(c). Written summaries of select Informal Opinions are published for informational purposes as determined by the Advisory Committee of the Supreme Court of Missouri pursuant to Rule 5.30(c). Informal opinion summaries are advisory in nature and are not binding. These opinions are published as an educational service and do not constitute legal advice.

To request an Informal Opinion, please visit: https://mo-legal-ethics.org/for lawyers/requesting-an-informal-advisory-opinion/.

© Copyright 2023