I've FIRED MY ATTORNEY But She Won't Release My FILES - What Should I do?

Q. I want to fire my divorce attorney. She claims I owe her money for legal services, but I don't feel I owe her because I was double billed for some items, and she is actually charging me 4 hours of time for supposedly writing the declarations that were filed on my behalf even though I am the one who actually wrote them (at her request)! I asked her for my files, but she sent me the most recent fee invoice and demanded that I first pay the balance and also pay for her to copy and mail them to me. I have a settlement conference scheduled in 5 weeks, and want to interview attorneys to find a better one this time. I've been told I should take my files when I meet with these new lawyers. I am afraid that once I find an attorney I can trust, that there will not be enough time for him to prepare.

Does my family law attorney have the right to demand I first pay her the amounts I dispute before I can get rid of her? Are my files her property or my property?

Trish, Vista, CA


A. Trish. Attorneys absolutely cannot hold client files hostage for any reason, but I am always amazed when I hear a story like yours because your situation is surprisingly common. A large part of our marital practice includes taking cases over where the attorney-client relationship has broken down between our new clients and their former legal professionals. Fortunately, while attorneys will not infrequently play the game that you are suffering when it is a client herself who is requesting their file, rarely do attorneys attempt to extort payment from their clients as a condition to getting off the case and returning the files when the demand comes from us. This is because, once the prior attorney is informed or reminded of it, the fact is that California State Bar ethical rules are quite clear on the subject - even if a little vague on the timing.

Cal. Rules of Professional Conduct, Rule 3-700, states:

(D) Papers, Property, and Fees.

A member whose employment has terminated shall:

(1) Subject to any protective order or non-disclosure agreement, promptly release to the client, at the request of the client, all the client papers and property. "Client papers and property" includes correspondence, pleadings, deposition transcripts, exhibits, physical evidence, expert's reports, and other items reasonably necessary to the client's representation, whether the client has paid for them or not; and

(2) Promptly refund any part of a fee paid in advance that has not been earned. This provision is not applicable to a true retainer fee which is paid solely for the purpose of ensuring the availability of the member for the matter. [Italics added].

Clearly, whether you have paid for the services allegedly rendered by the attorney or your papers and property or not, withholding client files upon discharge of the attorney is not an ethical option for her.

Note that this rule speaks to situations where the attorney-client relationship has "terminated," which arguably - at least where proceedings are pending and the lawyer is the "attorney of record" in those proceedings - does not occur until the Substitution of Attorney has been signed by the attorney and the client and has been filed with the Court. I've had clients come to me whose attorneys refuse to draft, or sign, the Judicial Council Substitution of Attorney form, and I don't know whether the attorney's thinking is that they don't need to turn the files over until that occurs. I can imagine situations where a client demands their files, and even tells the attorney she is fired, and yet the client refuses to sign the Sub of Attorney because they prefer that their new attorney be the one to do so: Some clients fear that a Court is going to assume the client has done something wrong if a Sub of Attorney first makes the client a self-represented party (i.e., "in propria personal" or "in pro per"), because this may imply that the attorney fired the client rather than the reverse. I don't subscribe to that worry as a realistic concern.

It does create a bit of a quandary for an attorney who has been told they are discharged but who yet remains the attorney of record because the client refuses to sign the Sub, and the attorney is hence possibly obligated to deal with any emergency that might arise in the case before they formally withdraw. They certainly need to retain a least a copy of the file until they are out of the case, and of course prudence dictates that attorneys always keeps a copy of the client file in case of a future fee dispute or malpractice claim. Under circumstances where a client refuses to sign a Substitution form and yet still demands their file, it seems reasonable that the attorney charge the client for copying the file at that point in time although for the attorney to demand advance payment of the copying costs (which can be considerable in high-conflict family law actions) is ill-advised. Instead, the attorney may recover their copying costs in a fee arbitration - the State Bar's commentary to Rule 3-700 states "Paragraph (D) is not intended to prohibit a member from making, at the member's own expense, and retaining copies of papers released to the client, nor to prohibit a claim for the recovery of the member's expense in any subsequent legal proceeding." This certainly implies the attorney is entitled, downstream, to collect the copying costs whenever a file is returned to the client although this is generally read to mean that attorney-client retainer agreement must include contract language giving the attorney that reimbursement right.

A related question, apparently for some attorneys, is who is entitled to retain the original file as opposed to the copy? The answer would seem intuitively obvious, but Rule 3-700 doesn't itself make the distinction. But given that originals hold a superior position in the hierarchy of evidence, one would expect that the original file is always returned to the client. Nonetheless, I've many times seen only copies given to clients - usually in the form of a CD or DVD containing PDF's which the client must then print out at their own expense. It should be just the reverse. The client's materials should be turned over to the client in the form that they were received (hence, if received as PDF's that would be acceptable). Ultimately, an attorney should take reasonable steps to avoid causing the client reasonable and foreseeable harm during the turnover of client property.

3-700(D) is also silent as to what is meant by the word "promptly." How soon is soon enough would seem to be impacted by where one is in the litigation process, i.e., whether a motion is set to be heard, or an event is to occur, in the following week or in 5 weeks. It may not be reasonable to expect that an attorney can drop everything else that is happening in their office and, within 24 hours, copy 5 baker's boxes of materials. Given that lawyers are required to avoid causing or contributing to actual prejudice (as opposed to wrongly perceived potential prejudice by the client) to their client's interests as their primary concern, the upcoming timing of circumstances probably is more likely to result on the convenience burden being placed upon the attorney as opposed to you.

Otherwise, requesting that client files and property be delivered within 10 days is thoroughly reasonable, and this is how I draft all our requests for files from prior counsel. Keep in mind, however, that while a successor attorney who is not yet the "attorney of record" may make (including the fact of a record of) the request for files, the files should probably be delivered to the client and not the attorney at that point. Also, it may not be reasonable to expect prior counsel to pay exorbitant shipping or mailing costs where the client has the ability to go to that lawyer's office directly to retrieve the file.

By the way, writings or parts of a file that reflects the attorney's impressions, legal research, theories, or conclusions may be something that you are generally not entitled to receive. Most attorneys, including myself, remove all their handwritten notes from a file that is being returned to the client.

Clients are entitled to discharge and terminate their attorney without any explanation or cause. An attorney who refuses to recognize that termination is setting herself up for disciplinary proceedings. The attorney cannot hold the file hostage for payment of outstanding fees or copying costs, and must act promptly in supplying the file in light of the existing circumstances to avoid harm to the client's interests. Client files belong to the client, but the attorney's obligation ends once the client has physical possession of the records or writings being requested.

I'd send a letter to your attorney, possibly attaching Rule 3-700, demanding that she immediately prepare and execute a Substitution of Attorney and that she make your file available for pick-up within ten days. If this is not your first request, conclude your demand with a statement that if the attorney fails to do as you've reasonably requested, you will be filing a State Bar complaint against her. Obviously, retain copies of all these communications. If it is your first request, there is no reason to threaten the attorney. Sometimes new counsel wishes to pick the brain of prior counsel, so why create an enemy if your former attorney has otherwise behaved neutrally?

Keep in mind that if there are existing orders for the payment of attorney fees to your former attorney, there are specific statutory procedures (see Family Code section 272) that need to be followed if she intends to collect those monies to apply against your bill.

Author: Thurman W. Arnold, III, CFLS

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