2003-3.

• Case Date: May 06, 2003
• Court: Alaska

Alaska Ethics Opinion 2003. 2003-3. ALASKA BAR ASSOCIATIONETHICS OPINION 2003-3Documents to be Included in File Returned to Client on Termination of ServicesThe Committee has been asked the following question: A client decides to discharge his lawyer and asks the lawyer to provide a copy of the lawyer's file so that the client can take the file to a new lawyer. The lawyer's file contains original documents from the client, copies of pleadings and correspondence, investigator's reports, notes of the lawyer's conversations with opposing counsel, witnesses, and experts, sample pleadings from other cases, and notes by the lawyer regarding the lawyer's impression of the client and the client's often contentious communications with the lawyer. Must the lawyer provide a copy of everything in the file to the client? Discussion Rule 1.16(d) governs the lawyer's obligations to the client upon termination of the representation: (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law. ALASKA R. PROFESSIONAL CONDUCT 1.16(d) (emphasis added). The comment to the model rule provides: Assisting the Client Upon Withdrawal Even if the lawyer has been unfairly discharged by the client, a lawyer must take all reasonable steps to mitigate the consequences to the client. The lawyer may retain papers as security for a fee only to the extent permitted by law. Alaska law provides for a statutory attorney's lien. See AS 34.35.430. Thus, a lawyer who has not been paid for his or her services may be entitled to assert a lien against the file. However, discussed in Ethics Opinion No. 95-6, the lawyer's interest in getting paid must be subordinate to the rights of the client. This opinion does not offer further elaboration upon the retention of papers as security. Rather, this opinion addresses the question of what items to return to the client when a transfer occurs unhampered by considerations of retaining liens. The Committee concludes that the attorney must presumptively...