Where attorney, at the conclusion of representation, returns to the client all original documents and any other document from the file which belong to the client, it is not ethically improper for the attorney to charge the client for the expense of making additional copies of the file at the client's request.
FACTS
When the inquiring attorney represents a client, he sends the client copies of all letters and pleadings that have been sent or filed on the client's behalf. At the conclusion of representation, the inquiring attorney reviews the file and returns all original documents and any other documents which belong to the client. He also asks the client to check his records to determine if there are any original documents the client feels should be returned. Copies of depositions and other documents secured through discovery are also made available to the client at the conclusion of the case.
Despite these efforts, the inquiring attorney frequently receives requests for additional copies of the file, either at or after the termination of representation.
QUESTION
May the inquiring attorney ethically charge the client for the cost of making a duplicate copy of the file?
ETHICAL RULES INVOLVED
ER 1.15. Safekeeping Property
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(b)...a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive....
ER 1.16. Declining or Terminating Representation
(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as... surrendering papers and property to which the client is entitled.... The lawyer may retain papers relating to the client to the extent permitted by other law.
OPINION
Generally speaking, a lawyer has a duty to deliver promptly to a client any funds or other property that the client is entitled to receive. ER 1.15(b). This principle is repeated in ER 1.16(d), which requires a lawyer to surrender papers and property to which the client is entitled at the conclusion of representation. The question of which documents the client is entitled to receive is a legal one arising outside the Rules of Professional Conduct, involving application of the law of attorney's liens, the work product privilege, and perhaps other law. See ER 1.16(d) (permitting a lawyer to retain papers relating to the client to the extent permitted by other law); our Opinions Nos. 92-1 (March 12, 1992) and 81-32 (November 2, 1981) (discussing attorney's lien and work product privilege as basis for withholding documents from client); National Sales and Service Co. v. Superior Court, 136 Ariz. 544, 667 P2d 738 (1983) (discussing validity and scope of an attorney's retaining lien). According to paragraph 6 (a) of our Statement of Jurisdictional Policies, this committee may not offer an opinion on the purely legal issue of the client's entitlement to documents in the file.
Therefore, for purposes of our analysis, we will assume that the inquiring attorney provides the client with all documents to which the client is entitled. The inquiring attorney's question is whether he is under an ethical obligation at some later date to provide the client with a duplicate copy of the file at his own expense. This is a situation which is not addressed specifically in ER 1.15, ER 1.16, or any of the other Rules of Professional Conduct.
However, ethics opinions in other jurisdictions have addressed this issue. For example, the Kentucky Bar Association's Opinion E-280 (1984) (ABA/BNA Lawyers' Manual on Professional Conduct at 801:3909) determined that, when a client asks for an additional copy of the file, the attorney may charge for the actual costs of duplicating the file. That opinion was followed in Opinion 554 (1985) of the New Jersey Advisory Committee on Professional Ethics (ABA/BNA Lawyers' Manual. supra, at 801:5817) which concluded that a client's new attorney was responsible for paying the client's former attorney for copies of the client's file.
We agree with the Kentucky and New Jersey ethics committees that an attorney is not obligated under either ER 1.15(b) or ER 1.16(d) to provide extra copies of a client's file free of charge. Once an attorney has given the client all documents to which the client is entitled, he. or she has fulfilled the duty created by these rules and may properly charge the former client for the actual cost of making additional copies of documents which had been previously provided.
Thus, it is important to distinguish our opinion from those in which the attorney proposes to charge the client for copying the original file. This practice violates ER 1.15(b) and ER 1.16(d). As discussed above, a client is entitled to the return of all documents provided to the attorney unless the attorney can assert some legal basis for withholding the documents. ER 1.16(d); our Opinion No. 92-1 at 2-3, and our Opinion No. 81-32 at 4-5. In Opinion 1171 of Virginia's Standing Committee on Legal Ethics (1989), the committee determined that a lawyer could not condition the return of original documents on the client's payment of copying charges. The committee reasoned that the client was legally entitled to the documents, and that the copy was being made solely for the lawyer's own benefit. Michigan State Bar Opinions CI-845 (Nov. 1, 1982) (ABA/BNA Lawyers' Manual. supra, at 801:4854) and CI-926 (May 12, 1983) (ABA/BNA Lawyers' Manual. supra, at 801:4866) have also concluded that it is improper for the lawyer to make the return of original documents to the client contingent on the payment of copying charges.
Under the facts presented, it is apparent that the inquiring attorney makes significant efforts to ensure that his client receives all documents to which the client is entitled. Assuming that all such documents have been provided to the client at or before the conclusion of representation, it is ethically proper, under Arizona's Rules of Professional Conduct, for the attorney to charge the client for the actual costs of making a duplicate copy of the client's file.
Formal Opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceedings.
©State Bar of Arizona 1993