Link to original WordPerfect Document
115 N.J.L.J. 565
May 16, 1985
ADVISORY COMMITTEE ON PROFESSIONAL ETHICS
Appointed by the New Jersey Supreme Court
Retention of Client's File after
Termination of Employment Relationship
An attorney was engaged to represent on a contingent basis a
father, mother, and their son in a personal injury matter.
Suit was filed against two defendants. Interrogatories and
depositions were used to get at the facts, and the insurance
carrier for the primary defendant offered $15,000 (the limit) for
a settlement of the father's claim. This sum was paid into court.
No other offers of settlement have been made.
More than two years after the plaintiff's attorney began his
representation, he received a letter from another attorney stating
that he had been requested to represent the clients above
mentioned, and a form of authorization was enclosed directing the
original attorney to turn over the contents of his file to the
other attorney's office. The new attorney said he would protect any
reasonable lien which the original attorney might have as a result
of his work product to date. The lien would be paid from any
settlement or verdict which might result from the litigation.
The original attorney, by letter, answered that a lot of work
had been done, that the attorney for the primary defendant had
offered the policy limits of $15,000 on the father's claim, that
this sum had been deposited in court, and that counsel for the
other defendant had indicated he would entertain a settlement
demand for the other claims: He further said:
"With regard to fees, we have agreed that":
1. I am to be reimbursed for all out-of-pocket expenses and
the expense of photocopying the file for you.
2. Regarding the father, I will be entitled to a
fee of $ 5,000 (based on one-third of the offer of
$15,000.00) plus 50% of the attorney fee you generate
upon any recovery in excess of $15,000.00 on the father's
3. Regarding the son and his mother, I will be entitled to
a fee of 50% of the attorney's fee you generate
attributable to their claim.
4. You will assume responsibility for payment of any
expenses relating to this matter.
The new attorney answered, in substance, as follows: I agree
to paragraph one and the first half of paragraph two. I refuse the
second half of paragraph two, and paragraph three, but I agree to
Thereafter, the new attorney demanded the right to pick up the
entire file, and the original attorney offered to give the
plaintiffs' and defendants' answers to interrogatories and the
original depositions of all parties, and allow the new attorney to
review the entire file to indicate any other items he might require
to complete his file.
The new attorney insisted on receiving the whole file from the
original attorney, but this was refused.
The real question is what is the ethical responsibility of a
discharged attorney to his former client and his or her new
It should be noted that in this case, there is no suggestion
that the discharge was based on cause.
RPC 1.16(d) of the Rules of Professional Conduct provides as
(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. (Emphasis added).
The Court in In re Estate of Poli, 134 N.J. Super. 222(Cty.
Ct. 1975) said that a client has the absolute right to discharge
his attorney and terminate the relationship at any time with or
The Court further said, at page 226:
In summary, we hold that an attorney discharged with or
without cause is entitled to the reasonable value of his
services rendered to the time of discharge. We further hold
that the cause of action to recover compensation for services
under a contingent fee contract does not accrue until
occurrence of the stated contingency.
Cf. Stein v. Shaw, 6 NJ 525 (1951). In Niebuhr v. Sassadeck,
15 N.J. Misc. 285 (Sup. Ct.),190 A. 783 (1937), aff'd 120 N.J.L.
183 (E&A 1938) the attorney's services were nearly completed on his
discharge, and therefore quantum meruit was held not to be
applicable in determining the amount of the fee.
RPC 1.4(a) and 1.15(b), (c), and (d) provide as follows:
1.4(a) A lawyer shall keep a client reasonably informed
about the status of a matter and promptly comply with
reasonable requests for information.
1.15(b) Upon receiving funds or other property in which
a client or third person has an interest, a lawyer shall
promptly notify the client or third person. Except as stated
in this Rule or otherwise permitted by law or by agreement
with the client, 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.
1.15(c) When in the course of representation a lawyer is
in possession of property in which both the lawyer and another
person claim interests, the property shall be kept separate by
the lawyer until there is an accounting and severance of their
interests. If a dispute arises concerning their respective
interests, the portion in dispute shall be kept separate by
the lawyer until the dispute is resolved.
1.15(d) A lawyer shall comply with the provisions of R.
1:21-6 ("Recordkeeping") of the Court Rules.
In our Opinion 445, 104 N.J.L.J. 567 (1979), the inquiry was
whether an attorney who had been completely paid all outstanding
fees could refuse to deliver the client's original file, citing DR
9-102(B) 4 and Opinion 203, 94 N.J.L.J. 298 (1971).
In Opinion 203, the ethical question presented was whether a
professional corporation might refuse to honor the request of a
client to permit one of the withdrawing attorney stockholders to
take that client's file with him. The answer was negative, because
a client has the right to be represented at all times by counsel of
his own choosing. Even if the corporation had not been fully paid,
there would be no justification for failing to deliver to the
client "whatever the client was entitled to receive."
The question, which has not previously been answered by us, is
the meaning of RPC 1.15(b) and (c), which deals with "Safekeeping
Property". RPC 1.15(b) says that 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.
We believe that the client or his new attorney is entitled to
receive the file with everything which is or was essential for the
completion of the litigation.
But who is to pay for the copying of the material?
If the new lawyer asks to review the file and indicates the
particular material he needs, it could be promptly copied. This
would tend to reduce the cost to him, since he may already have
copies of many documents which the original attorney had sent to
the client. A demand to take away the file is not fruitful and can
be very expensive when the reasonable costs are charged to the new
We can find no precedent deciding who pays for the copy work.
It seems to us that when a client changes attorneys, the burden
should rest with the client and his new attorney. Payment of the
charges may have to await the outcome of the litigation, but the
obligation to pay is created when the copies of the records are
made available to the client or his new attorney. The original
attorney has a genuine interest in retaining the records and
documents for his protection against possible malpractice suits, or
an ethical or tax inquiry.
In another related inquiry, an attorney states that for many
years past, he represented a husband and wife in their personal and
business matters. All matters have been closed and the attorney has
been paid. A new attorney has sent said attorney a letter demanding
everything in his files.
Is the original attorney obligated to comply with this
We believe he must do so but, as previously stated, it is the
obligation of the new attorney or his client to pay for the copy
work or, if litigation is pending, agree to make payment out of the
proceeds of the litigation.
In another related inquiry, the attorney raises three fact
1. An attorney in a matrimonial matter which is pending for
judicial determination is discharged or seeks to
withdraw. The client asserts that the client's new
attorney needs the file to try the matter, but that the
client has no money to currently pay the bill (this
happens especially when the client is a housewife who
expects to pay for legal services out of the proceeds of
sale of residence or by court order compelling husband to
pay), or that the bill amount is in dispute.
2. An attorney in a contingent fee case is discharged either
prior to or after initiating suit but before settlement
3. An attorney in a non-court matter is discharged and the
amount of the bill is in dispute.
The foregoing Opinion has settled the ethical question, but
the related inquiry raises substantive questions which are outside
the jurisdiction of this Committee. These questions should be
addressed to the Court in which the case is or was pending; and in
a non-court matter, the attorney should urge the former client to
apply under R. 1:20A for arbitration of the fee dispute. If the
former client refuses to do so, the matter will ultimately have to
wind up in a court.
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