Who gets the notes? The ABA sides with firms

July 7, 2015

Clients may come and clients may go, but until now it hasn’t been entirely clear who gets the documents, as well as the notes and drafts, when a client decides to change attorneys.

To resolve the ownership question, the American Bar Association has issued an opinion clarifying that when a client severs relations with an attorney or firm, the client is entitled to completed legal documents and correspondence, along with some other materials.

In “Formal Opinion 471,” the ABA’s Standing Committee on Ethics and Professional Responsibility said that some jurisdictions follow a so-called “entire file” approach. Under that view, a lawyer must turn over any property or papers related to representation unless specifically exempted.

Other jurisdictions have employed a finer touch and ascribe to an “end-product” approach under which only the final document, report or other work reverts to the client. Drafts and notes, as well as other interim materials, stay with the attorney after a relationship ends.

The committee opted for a version of the narrower, end-product approach for matters that have concluded. As a result, while clients are entitled to final submissions, they shouldn’t get drafts, internal legal memorandums, conflict checks, personal notes and general assessments of the matter, to name just a few.

The calculus changes, however, when a client changes lawyers midstream. In that case, the opinion says, the client may be entitled to some of the materials “generated for internal law office use.”

To read the entire opinion, click here.


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