Ownership of the Client File
Client files belong to the client, not the lawyer or law firm. Upon the termination of the lawyer-client relationship, the law firm is obligated to promptly deliver the client file to the client or their new lawyer, unless there's consent for non-delivery or substantial grounds for refusal. It's recommended for the law firm to retain a copy for various reasons and retention periods.
The Role of the Records Manager and Information Governance Professionals
For records managers and information governance professionals in law firms, identifying documents for the client file can be challenging. The absence of a centralized paper file and the scattered nature of electronic records across multiple systems or folders contribute to this difficulty. The debate over what constitutes a record in the client file adds to the challenge, as state bar rules vary in defining the client's entitlement to papers.
Defining the Records in the Client File
Determining which papers the client is entitled to involves state bar rules, ethics opinions, and, in some cases, court decisions. There are two common approaches: the End Product Approach (Minority), focusing on final public documents, and the Entire File Approach (Majority), considering any document created or possessed during representation as belonging to the client. Regardless of the approach, attorneys cannot disclose records revealing confidential or privileged information of another client.
Policies Created by the Firms Records Manager or Information Governance Professional
When a law firm operates in multiple areas, it's safest to use the Entire File approach to define a client file. This approach, considering all documents created during representation, ensures compliance without violating rules like the End Product Approach, resulting in a more comprehensive file for the former client.
However, not all lawyers prefer this approach. In situations where the file is transferred to another attorney or the attorney-client relationship ends poorly, sending all records, including internal work, might not be ideal.
Despite these concerns, records managers and information professionals in law firms must acknowledge that deciding what goes into the client file isn't solely up to the attorney. Instead, law firms, along with their lawyers, must adhere to the rules set by their state legal, judicial, and licensing authorities.
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