Talk to an Expert

(727) 823-4155

gavelJACPA Ethics Alert


Recent ABA Formal Ethics Opinion examines obligations of lawyers

in providing file documents to former clients after termination



Hello everyone and welcome to this Ethics Alert which will discuss recent American Bar Association Formal Ethics Opinion 471 which discusses the obligations of lawyers to return file/documents to former clients .  The opinion is Formal Opinion 471 (Ethical Obligations of Lawyer to Surrender Papers and Property to which Former Client is Entitled) (July 1, 2015) and is online here:

The opinion begins with the premise that lawyers must often return documents and materials to a client after the termination of the representation in order to protect client’s interests.  The opinion analyzed the following facts:  a lawyer had represented a governmental municipality for 10 years.  After the representation was terminated, the municipality requested that  the lawyer provide its new counsel with all files, including both open and closed files.


The opinion further states that lawyers’ obligations and responsibilities are generally outlined in ABA Model Rules 1.15 and 1.16.  Model Rule 1.15 provides that a lawyer must safeguard a client’s property and promptly return it to the client when requested. Model Rule 1.16(d) provides that lawyers take steps “reasonably practicable to protect a client’s interests.” These steps include “surrendering papers and property to which the client is entitled.”  The Model Rules do not define what “papers and property to which the client is entitled.” 


According to the opinion, most jurisdictions apply the “entire file” approach, wherein there is a presumption that lawyers must return all papers in the file unless a specific exception applies.  “In those jurisdictions, at the termination of a representation, a lawyer must surrender papers and property related to the representation in the lawyer’s possession unless the lawyer establishes that a specific exception applies and that certain papers or property may be properly withheld.  Commonly recognized exceptions to surrender include: materials that would violate a duty of non-disclosure to another person; materials containing a lawyer’s assessment of the client; materials containing information, which, if released, could endanger the health, safety, or welfare of the client or others;16 and documents reflecting only internal firm communications and assignments. The entire file approach assumes that the client has an expansive general right to materials related to the representation and retains that right when the representation ends.”


Other jurisdictions use the “end product” approach.  Under this approach, lawyers must provide all finished products in the file, such as pleadings and expert and investigative reports, but not work product, such as memoranda about conflicts of interest or ethics, drafts of legal instruments, and legal research and memoranda.  According to the opinion, “(a)dministrative materials related to the representation, such as memoranda concerning potential conflicts of interest, the client’s creditworthiness, time and expense records, or personnel matters, are not considered materials to which the client is entitled under the end product approach. Additionally, the lawyer’s personal notes, drafts of legal instruments or documents to be filed with a tribunal, other internal memoranda, and legal research are viewed as generated primarily for the lawyer’s own purpose in working on a client’s matter, and, therefore, need not be surrendered to the client under the end product approach.” Florida follows this approach. 


The opinion states that lawyers should always return end product materials; however, “there may be circumstances in individual representations that require the lawyer to provide additional materials related to the representation.”  Also, any documents and/or materials which would likely prejudice the client’s interests if they are not provided must be returned to the client. The opinion also noted that if a filing deadline is imminent, a lawyer must timely provide “the most recent draft and relevant supporting research” to avoid causing prejudice to the client.


Bottom line: this opinion provides important guidance from the ABA regarding a lawyer’s duties and obligations when providing file documents and/or materials to a client after the representation is terminated.  Of course, lawyers must determine which rule their jurisdiction applies before acting.


Be careful out there. 


           As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.             

My law firm focuses on review, analysis, and interpretation of the Rules Regulating The Florida Bar, advice and representation of lawyers in Bar disciplinary matters, defense of applicants for admission to The Florida Bar before the Board of Bar Examiners, defense of all Florida licensed professionals in discipline and admission matters before all state agencies and boards, expert ethics opinions, and practice management for lawyers and law firms.  If there is a lawyer or other Florida professional license involved, I can defend the complaint or help obtain the license. 

If you have any questions or comments, please feel free to call me at (727) 799-1688 or e-mail me at[email protected].  You can find my law firm on the web at In addition to handling individual cases, matters, problems and issues for my clients, I also am on retainer to provide ethics advice to numerous lawyers and law firms throughout the state of Florida.  I also provide legal assistance and advice to numerous individuals and non-legal entities to help insure compliance with the law and rules related to UPL and other issues.

You are receiving this ETHICS ALERT since you are a current or former client or you have requested that this ETHICS ALERT be sent to you.  Please note that you may opt in or out of receiving this ETHICS ALERTS any time.  If you would like to discontinue receipt of this ETHICS ALERT or if you would like to begin receiving it, simply send me an e-mail to me advising of your request.

If there are others at your firm who would like to be included on the distribution list, please feel free to forward this update to them or let us know in an email.  If you would like to forward this ETHICS ALERT to any person or entity please feel free do so as long as it is not for personal gain and you forward the entire email, including all contact information and disclaimers. 

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

[email protected]