Can My Old Lawyer Refuse to Give My File to My New Lawyer?
LAWYERS MUST RELEASE THE CLIENT’S FILE PROMPTLY, UPON REQUEST
Attorneys have a legal duty to release the client’s file (at the client’s request) upon termination of the attorney-client relationship, regardless of the reason for termination.
The lawyer must release “all materials and property” belonging to the client (including electronic files), and must release them promptly. While the law does not state a specific time frame within which the file must be released (or transferred to new counsel, if the client so requests) a California case has held that a two month delay was too long. (See: Matter of Brockway (Rev.Dept. 2006) 4 Cal. State Bar Ct.Rptr. 944, 958)
WHAT MATERIALS ARE PART OF THE CLIENT’S FILE?
Under California law, the client’s file includes “all client materials and property.” This includes:
- Correspondence to and from (and including) the lawyer and all relevant persons or parties
- Research reports prepared for, by, or on behalf of the lawyer for the client’s case
- Pleadings filed with the court
- All other materials filed with the court that are part of the public record (for example, deposition transcripts, expert reports, exhibits, and physical evidence, regardless of their form)
- Mental health records (of the client)
- Other items reasonably necessary to the client’s representation
What constitutes part of the “client file” is determined on a case by case basis, based on the nature of the representation, the location and nature of the materials, and other reasonable factors, specifically including the lawyer’s duty to avoid (and prevent) reasonably foreseeable prejudice to the client’s interests.
DOES THE LAWYER HAVE TO SCAN THE FILE OR TRANSFER IT TO DIGITAL FORM?
An attorney is permitted to transfer the file in the same form and format in which the lawyer possesses it. This means the lawyer does not have to scan and transfer the file via email or file sharing service if the documents are possessed in physical form. Conversely, the lawyer does not have to physically print out emails and other electronic correspondence.
It also is worth noting that attorneys should remove confidential information about other clients or matters from a client’s file before releasing the file–and this includes the redaction of metadata and personal information. Failure to do so may constitute a wrongful transfer of confidential or protected information.
Disclaimer: THIS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY, AND DOES NOT CONSTITUTE LEGAL ADVICE OR CREATE AN ATTORNEY-CLIENT RELATIONSHIP BETWEEN THE AUTHOR OR ROSS LAW AND ANY PERSON. Your legal rights and experiences may vary. Never use an online article (including this one) to evaluate your legal rights or claims. Consult an experienced attorney promptly to obtain a personalized evaluation of your claims, potential damages, and the various legal rights and options available to you.
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