Lawyers must retain sufficient information regarding the work they have done on a matter to permit the client to understand what was done for them and to permit a subsequent lawyer to take up the matter if the lawyer is discharged, withdraws, or is unable to continue the representation for other reasons such as death, disability, or discipline. This obligation informs the lawyers’ obligations concerning what materials they keep, how they store and organize those materials, and what they do with records at the end of a representation.
Lawyers are ethically obligated, upon a client’s request at the conclusion of representation, to provide the client with the client’s documents and all documents reflecting work performed for the client. This obligation does not require the lawyer to retain paper or electronic documents generated or received in the course of the representation, that are duplicative of other documents generated or received in the course of the representation, incidental to the representation, or not typically maintained by a working lawyer, unless the lawyer has reason to believe that, in all the circumstances, the client’s interests require that these documents be preserved for eventual turning over to the client at the conclusion of the representation. Understanding the lawyer’s duty to preserve client documents in this manner advances client interests. It enables a lawyer to restrict “the file” to documents that actually assist the lawyer in competently and diligently representing the client, in the context of the particular client matter and the lawyer’s practice, as well as effectively communicating with the client and exercising professional judgment on the client’s behalf, rather than preserving anything and everything ever generated or received during the course of the representation. To the extent prior opinions of this Committee may be construed as asserting otherwise, they are withdrawn.
See also EO-19-0009
When a lawyer’s employment with a firm is terminated, both the firm and the departing lawyer have ethical obligations to notify affected clients, avoid prejudice to those clients, and share information as necessary to facilitate continued representation and avoid conflicts. These ethical obligations can best be satisfied through cooperation and planning for any departure.
An attorney who limits the scope of representation and coaches the client or ghost writes papers must direct the client to be truthful and candid in the client’s activities. While an attorney is not required to disclose to opposing counsel that the attorney is providing limited-scope representation, the attorney must maintain client confidentiality if doing so.
In the context of a prepaid legal services program, attorneys may not release confidential or privileged information to a third-party auditor without the client's informed consent. Because billing information often contains confidential information, contractual provisions requiring an attorney to allow, without exception, third parties to review the client file and billing records violate ER 1.6(a).
An attorney may agree to represent a client under a prepaid legal services agreement that limits the presumptive compensation allowable for "basic" legal services if the attorney complies with ER 1.8(f)(2), including determining that the limit on payment does not interfere "with the lawyer's independence of professional judgment or with the client-lawyer relationship." When agreeing to accept third-party payments, the attorney must be careful to abide by the client's "decisions concerning the objectives of representation and ... whether to settle a matter." ER 1.2(a). An attorney's agreement to limit compensation from a third party does not limit the attorney's duty provide a diligent and thorough representation of the client.
Provisions in a prepaid legal services contract between a client and the issuing trust do not excuse a lawyer's compliance with applicable ethical rules. An attorney may not enter into a contract that requires the attorney to violate his or her ethical duties.
It is prudent for a lawyer to make arrangements for the administration of his or her client trust account in the event of the lawyer’s death or disability. It is beyond the jurisdiction of the Committee to offer legal advice as to the particular means of making such arrangements, but a prudent lawyer is well-advised to identify someone in advance of such a contingency who can assume such a responsibility, to develop a plan that covers both the contingencies of disability and death, and to incorporate plans for the administration of the client trust account into a broader plan for winding up the lawyer’s affairs if either contingency occurs.
A public defender ethically may disclose information requested on a court initial status report regarding certain information about meeting with the defendant, production of discovery, and review of plea offers. [ERs 1.2, 1.3, 1.6, 3.3, 3.8, 8.4]
Attorney may apply court-awarded attorney's fees and costs to the balance owed him if client is not responding to repeated telephone calls and letters.
Thorough analysis of the scope of an attorney's ethical duty to report another attorney's misconduct.
Ethical obligations of Public Defender and individual attorneys in his office who are carrying unduly high annual caseloads.
Necessity of lawyer withdrawing from representation of client who lawyer knows has obtained information by means of surreptitious tape recording. Attorney making use of such information.
Circumstances in which a lawyer may disburse settlement proceeds obtained on behalf of a client against which a third party is asserting a lien. Obligation of lawyer to initiate formal proceedings to have the validity if the lien determined.
Potential conflict of interest exists between seeking the office of County Attorney and representing a criminal defendant.
The juvenile public defender who learns that conversations between attorneys and detainers at the juvenile detention facility are monitored by detention staff personnel has an ethical duty to represent the juvenile the same as any other client. That duty extends to protecting the juveniles right to effective counsel, which includes privileged communications.
Competent and diligent legal representation applicable to part-time city prosecutor regardless of caseload resulting under the contract.
Attorney appointed by juvenile court encountering problems in his attempted representation of client due to minor's parents intervention and minor's lack of cooperation.