legislation: Court Says Client Have Right to Access Their legal Files

Barry Shanoff

November 1, 1998

3 Min Read
legislation: Court Says Client Have Right to Access Their legal Files

After the owner of a commercial waste hauling firm decided to hand over the company's legal business to a new attorney, he broke the news to his then-current lawyer and asked for the company's legal files.

To his surprise, the lawyer refused, saying he would turn over only copies of court papers and, if necessary, copies of correspondence and memorandums addressed to the client, but not notes, internal memos, documents and other background materials that the lawyer prepared or used in providing advice to the client.

Not too many years ago, law firms freely turned over the contents of their files whenever clients asked them to do so. Nowadays, however, lawyers contend that they own the files, even where clients have paid in full huge fees for the work.

A couple of years ago, a prominent New York City law firm and one of its former clients began a protracted fight over access to the client's files. The dispute ended only after the highest court in New York state ruled in favor of the client - a decision consistent with decrees, opinions and orders by courts, and lawyer disciplinary boards in at least 10 other states where clients enjoy almost complete access to their legal files.

Meanwhile, courts and professional panels elsewhere have agreed with lawyers who have argued that they own their notes and internal memos, and that compelling them to surrender these papers would stifle their creative thinking. Sometimes, however, even in the half-dozen states with lawyer-friendly rules, a client can obtain its files whenever it can show that it must examine them to understand what the law firm has done.

The fight over files may reflect the growing distrust between lawyers and clients, who increasingly are using the courts to resolve issues ranging from fee disputes to quality of services. Indeed, the dispute before the New York court involved a claim by the client that it needed to review the law firm's files to investigate the basis for a possible malpractice suit against its former lawyers.

The malpractice suit, which the client eventually filed and still is pending, alleges that the law firm negotiated with a party on behalf of the client but never told the client that the firm was actively soliciting legal business from the other party at the same time.

The client lost the records case in two lower courts, but pressed forward with the appeal. For its part, the law firm argued that lawyers have a legitimate interest in protecting their "internal" thought processes. Otherwise, the firm said in papers it filed, lawyers would "think twice" before putting on paper any "critical views of their client's actions, credibility or integrity." Access to files should not turn on whether a client paid its legal bills, the firm said, but whether it actually needs the files. As the firm saw it, the client already had all the files necessary to understand the firm's work.

In its ruling handed down last December, New York's high court said that a client's access to its files is part of a client's right to "openness and conscientious disclosure" from its lawyers.

Incidentally, the commercial waste hauler eventually received all of its files - but not before it threatened to file suit against its former lawyer.

Agreements The Southeastern Public Service Authority, Chesapeake, Va., has become a U.S. environmental Protection Agency Landfill Methane Outreach Program partner.

Waste Management Inc., Houston, has named Leach Co., Oshkosh, Wis., as the sole rear-loader supplier for the next three years.

Industrial Services of America Inc., Louisville, Ky., has made an agreement with Southern Salvage Scrap Metals, Harriman, Tenn., to offer recycling services.

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