Although many, if not all documents are stored electronically in a client’s file, we also have a hard copy file for each client. Once our representation of a client has ceased, we always ask the client if they would like to pick up their file or if we can shred it. In a majority of cases, the files contain a lot of confidential information and need to be properly stored or disposed of.
However, if a client switches attorneys in the middle of the case and needs access to their file, the attorneys have a duty to give the clients or their client’s new attorney their file. But what does that former attorney have to give to their client?
Most states require attorneys to allow the client to inspect and copy the entire file, a minority of jurisdictions, including Illinois, follow the end product approach. The end product approach is that ultimately the client is paying the attorney for the end result of the attorney’s work. So preliminary material like drafts and research or interview notes belong to the lawyer, not the client. However, clients are always entitled to receive the following materials: 1) documents and other materials furnished by the client; 2) correspondence between the lawyer and client; 3) correspondence between the lawyer and third parties; 4) copies of pleadings, briefs, applications, and other documents prepared by the lawyer and filed with courts or other agencies on the client’s behalf; and 5) final copies of contracts, wills, corporate records, and other similar documents prepared by the lawyer for the client’s use.
However, clients are not entitled to 1) drafts of briefs, pleadings, contracts, wills, corporate records, and other similar documents; 2) administrative materials relating to the representation such as memoranda concerning potential conflicts of interest or the client’s creditworthiness or personnel matters; and 3) the lawyer’s notes, drafts, and factual research materials, including investigative reports, prepared by or for the lawyer for the use of the lawyers in the representation.
The question of whether or not a lawyer can withhold a client’s file because they owe money is still up for debate. Illinois law provides that if the attorney-client relationship terminates for a reason other than a professional misconduct and the attorney has a claim against the client for unpaid fees and expenses, the attorney may assert retaining a lien in furtherance of the attorney’s right to compensation. Johnson v. Cherry 422 F. 3d 540, 554 (7th Cir. 2005). Sometimes, lawyers are forbidden from exercising an attorney’s lien for ethical reasons, such as withholding the file would prejudice the client’s ability to defend against a criminal charge or assert or defend a similarly important personal liberty.
No matter what, people should always retain as much documentation regarding their case as possible; you never know when an issue may arise and you need the information to refer to.