• October 23, 2019

Minnesota lawyers know (or should know) all about Minnesota Rule of Professional Conduct 1.16(e) (“Papers and property to which the client is entitled…”). The rule sets out lawyers’ obligations to give clients’ their files on termination of representation.

The ethics rule tries to balance the interests of lawyers and clients as to their respective rights to lawyers’ files. In a nutshell, a lawyer’s file for a particular client belongs to the client but the rule makes exceptions to avoid clients’ ripping lawyers off.

That is, it would be awful if a lawyer were retained to perform work, performed the work, did not get paid for the work, and then had an ethical obligation to surrender the lawyer’s work to the dead-beat client. This exception to the general rule that a client’s “papers and property” in a lawyer’s possession belong to the client seems sensible and uncontroversial.

Under this ethical rule, are Minnesota lawyers required to produce documents that reflect evidence of legal malpractice? Are they required to produce internal documents that are embarrassing or unflattering to clients who request their “papers and property”?

Rule 1.16(e) does not provide a comprehensive description of what “papers and property to which the client is entitled” includes.

To be sure, the rule expressly says, “Papers and property to which the client is entitled include the following, whether stored electronically or otherwise….” However, the rule does not provide that clients are only entitled to the listed documents.

In fact, the included list of “client papers and property” is quite limited. It does not include, for example, attorney notes, all client communications, all case-related communications to third parties, all internal firm communications, lawyer/law firm billing records, payment records, or time sheets. Do Minnesota lawyers have an ethical obligation to provide these to former clients on request under Minn. R. Prof. Conduct 1.16(e)? Are these “papers and property to which the client is entitled”?

The focus in case law considering such questions is on whether any withheld “papers or property” “would be useful” to the former client. See Crawford v. Logan, 656 S.W.2d 360, 363 (Tenn. 1983) (quoting ABA Opinion 10333 (“the conscientious lawyer should not withhold from the client any item that could reasonably be anticipated would be useful to the client”)). These decisions and the general consensus appears to be that client “papers and property” under Minn. R. Prof. Conduct might not include many documents in a particular “client matter file,” including internal documents that are embarrassing or unflattering to clients.

Having said that, Minnesota lawyers should recognize that client “papers and property” might be a subset, a significant subset, of documents to which a disappointed client would be entitled in discovery in a legal malpractice case. While careful curating and culling may well be ethical under Minn. R. Prof. Conduct on the termination of a client matter, it is extremely unlikely to be an acceptable approach in response to discovery in a professional negligence lawsuit.

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