伦理意见333

Surrendering Entire Client File Upon Termination of Representation

代理终止后, 澳门赌场官网必须向委托人投降, 给客户的法定代表人, or to a successor in interest the entire "file" containing the papers and property 客户有权得到的. This includes copies of internal notes and memoranda reflecting the views, 澳门赌场官网的思考与策略.

适用的规则

• 规则1.8(i)(对澳门赌场官网工作成果留置权)
• 规则1.16(d)(代理终止后交出文件)

调查

一家澳门赌场官网事务所曾代表一家银行处理各种事务. 在律所在这些事情上的代理结束之后, the Federal Deposit Insurance 公司 ("FDIC") was appointed as receiver for the bank. The FDIC’s outside counsel has requested access to all of the firm’s files regarding the bank. The firm has provided access to all client files with the exception of a small folder containing individual attorney handwritten notes and several internal memoranda reflecting attorneys’ thoughts, 印象和策略理念. Outside counsel for the FDIC claims to be entitled to all of the bank’s files — including the firm’s opinion work product — by virtue of the FDIC’s statutory assumption of all rights, 标题, 被保险存款机构的权力和特权. The FDIC’s counsel has never articulated why the particular material that the firm is withholding is necessary for its investigation of the bank’s failure. 而不是, 它只是认为联邦存款保险公司, 作为银行的利益继承人, 是否有权获得这些文件

讨论

D.C. 规则1.16 provides that "[i]n connection with any termination of representation, a lawyer shall take timely steps to the extent reasonably practicable to protect a client’s interests, 如 . . . 交出委托人有权拥有的文件和财产 . . . The lawyer may retain papers relating to the client to the extent permitted by 规则1.8(i)." D.C. 规则1.16(d). D.C. 规则1.8(i) creates a narrow exception to the general rule that clients are entitled to their files by allowing a lawyer to secure unpaid fees or expenses by placing a lien "upon the lawyer’s own work product, and then only to the extent that the work product has not been paid for." D.C. 规则1.8(i).¹ 对D的评论.C. 规则1.8个州, ，如果客户已经为工作产品支付了费用, 客户端有权接收它, even if the client has not previously seen or received a copy of the work product." D.C. 规则1.8、评论[9].

The Committee has recognized that the surrender of all files to the client at the termination of a representation is the general rule and that the work-product exception applicable to liens for unpaid fees or expenses should be construed narrowly. 看到 D.C. 道德Op. 250 (1994); D.C. 道德Op. 230 (1992). 工作成果"豁免"是证据法的一种学说, which may shield attorney work product from discovery by opposing counsel; it does not shield that same attorney work product from the attorney’s own client.

事实上, the Committee has explicitly recognized that the District of Columbia has rejected the "end-product" approach of some jurisdictions² -客户只拥有诉状, 合同, and reports that reflect the final result of the attorney’s work — in favor of the majority, “整个文件”方法, "which does not permit a lawyer to acquire a lien on any of the contents of the client file except that portion of work product within the file that has not been paid for." D.C. 道德Op. 283 n.3 (1988); 另请参阅 D.C. 道德Op. 168 (1986) (for purposes of determining what needs to be turned over to a former client or substitute counsel, “客户文件的全部内容”包括“所有笔记”, 构成‘工作产品’的备忘录和信件”); 赛奇地产有限公司. v. Rose Goetz教授 & Mendelsohn LLP), 91 N.Y.2d 30, 34, 689 N.E.2d 879, 666 N.Y.S.2d 985 (N.Y. 1997).

D.C.’s approach has been embraced by the Restatement (Third) of The Law Governing Lawyers (2000), 这说明, “在请求, a lawyer must allow a client or former client to inspect and copy any document possessed by the lawyer relating to the representation, 除非有充分理由拒绝." Id. at § 46(2). 澳门赌场官网必须交出所有文件和财产 客户有权得到的. This requires the attorney to consider carefully the contents of the "file," ensuring that it contains all material that the client or another attorney would reasonably need to take over the representation of the matter, 与该陈述有实质性关系的材料, and material reasonably necessary to protect or defend the client’s interests. An attorney would not be required to surrender material that relates solely to the prior management of the case (如 material concerning which of the firm’s lawyers were assigned particular research projects) or to matters that are completely unrelated to the substance of the representation.

结论

由于这些原因，至少到目前为止，D.C. 涉及职业行为规则, nothing in the matter at hand would justify withholding the relevant file from counsel for the FDIC.³

查询号:05-10-05
通过日期:2005年12月20日
出版日期:2005年12月

1. 虽然这里不相关，D.C. 规则1.8(i)也规定, 即使还没有付款, work product cannot be withheld (i) when the client has become unable to pay, or (ii) when withholding the lawyer’s work product would present a significant risk to the client of irreparable harm.
2. A minority of courts and state bar legal ethics authorities distinguish between the "end product" of an attorney’s services—e.g., 提交原告的起诉状, 供客户使用的文件的最终版本, 以及与客户的通信, opposing counsel and witnesses—and the attorney’s "work product" leading to the creation of those end product documents, 这仍然是澳门赌场官网的财产(见, e.g.，联邦土地银行诉. 联邦中级信贷银行，F . 127.R.D. 第473页，部分理由和部分理由，第128页.R.D. 182 (S.D. 小姐. 1989); Corrigan v. 阿姆斯特朗，蒂斯代尔，施莱夫利，戴维斯 & 公元824年.W.2d 92 (Mo). Ct. 应用程序.); Alabama State 酒吧, Formal 道德Op. RO 86-02; Arizona State 酒吧 Comm. 关于教授行为规则，Op. No. 92-1; Illinois State 酒吧 Assn., Op. No. 94-13; North Carolina State 酒吧 Ethics Comm., RPC 178 (1994); Rhode Island Supreme Ct. 道德顾问小组，Op. No. 92-88 (1993); Wisconsin 道德Opinion E-82-7 (1998)).
3. 这个假设, 当然, 联邦存款保险公司, is, 根据联邦法律, in effect the "client" and is entitled to any property or files to which the bank would be entitled if it were still the firm’s client.