What exactly is the client file?
That seems like a basic question that should have an obvious and simple answer. And maybe at one point it did.
I distinctly recall a truly unremarkable scene from Bridge of Spies, a 2015 film starring Tom Hanks as an insurance lawyer tasked with negotiating the release of Gary Powers, the pilot of the U-2 spy plane shot down over the USSR in 1960. Near the beginning of the film, when the audience is being introduced to Hanks’ character, Hanks asked one of his many legal secretaries for the “Prudential file.” I assume she knew what he was referring to because she immediately turned — with a serious look on her face — and marched toward a wall of filing cabinets positioned in the background. But that was 1960. And it was a movie.
If I ask an assistant at my office today to get me the “Prudential file,” I am sure I would be confronted with a confused stare. First, because Prudential isn’t one of my firm’s clients (I couldn’t help myself). Second, because for the most part my office does not have physical paper files to retrieve. To be sure, we keep the occasional hard-copy item that gets served on us during the course of a case, but those items are only a small fraction of what people would intuitively call the client file. Instead, we store all the documents relating to a particular matter electronically in a shared folder that members of the firm who are working on that matter have access to. Even those occasional hard-copy documents that an opposing counsel stubbornly mail us as some nostalgic nod to a simpler and more civil past will still get scanned and uploaded into that electronic file.
Perhaps that is the answer then. The client file is merely the file — whether in hard or soft copy — were items pertaining to the representation are kept. For a litigator like me, the client file would consist of pleadings, motions, orders, discovery products and the like.
That seems simple enough, but let’s test that conclusion by upping the stakes. A client sends you an angry email expressing displeasure in the services rendered, terminating your representation and then demands that you give them a copy of their file including any and all documents and communications your firm has pertaining to their matter.
A few minutes of contemplation starts to reveal the dissonance between our intuitive understanding of what a client file is and the expectations of that angry hypothetical client.
For any litigation matter you will have emails, and not just with the client and opposing counsel, but also internal emails with coworkers that the client was never a party to. There may also be text messages, voicemail messages and other forms of communications that one would not immediately think are part of the “client file.” There will also certainly be drafts of correspondence and other work product that were never incorporated into the official matter file for one reason or the other. If your firm uses a document management system or case management software, you will also have whatever information those applications create and store, including corresponding metadata.
Compounding things, there may be 3 or 4 people at the firm (or maybe more) who worked on the case and who accessed, modified or created data relating to the matter over many different devices, thus potentially creating unique relevant data. At the very least those devices will need to be searched.
The demands of the hypothetical client now appear to be unreasonably intrusive and burdensome. You do not have a problem with immediately giving the client a copy of their “file,” but you do not believe that you should be required to engage in the expansive discovery project the client is now demanding. But think again.
The term “client file” does not appear in the Texas Disciplinary Rules of Professional Conduct. The only salient thing that the ethics rules say on the matter is this (emphasis added):
Upon termination of representation, a lawyer shall … surrender[] papers and property to which the client is entitled. … The lawyer may retain papers relating to the client to the extent permitted by other law only if such retention will not prejudice the client in the subject matter of the representation.
The analysis then turns to what are the “papers and property to which the client is entitled”?
The case law on the issue is anemic. Nonetheless, the Texas Supreme Court in its 2000 opinion In re George explained that “the work product generated by the attorney in representing the client belongs to the client.” In the context of litigation, “work product” is defined in 192.5 of the Texas Rules of Civil Procedure to include both materials and communications made in anticipation of litigation or for trial. Relying in part on that definition, the Texas Committee on Professional Ethics issued Opinion 570 requiring a lawyer to disclose internal notes made in the course of and in furtherance of the representation to their former client.
That TCPE opinion was also notable in that it formally rejected adopting comment c to Section 46 of the Restatement (Third) of The Law Governing Lawyers. That comment provided that a lawyer may withhold a portion of the client file under the following circumstances:
A lawyer may refuse to disclose to the client certain law-firm documents reasonably intended only for internal review, such as a memorandum discussing which lawyers in the firm should be assigned to a case, whether a lawyer must withdraw because of the client’s misconduct, or the firm’s possible malpractice liability to the client.
So, to circle back to the hypothetical, it appears that the applicable ethics rules and Texas case law provide no clear limiting principles for what materials qualify as part of the client file and which are excluded. Indeed, the courts’ only guidance is that “the entire contents of a client’s file” belong to the client and must be disclosed, as noted by the Court of Criminal Appeals in In re McCann.
It is hard to blame the rules and the courts for their lack of clarity. The confusion is almost certainly a result of applying language from decades ago to the modern practice of law and its reliance on current technology. In fact, the mandates of TDRPC 1.16(d) have existed at least since 1969, when the ABA adopted its Model Code of Professional Responsibility, including Disciplinary Rule 2-110(A)(2) which states that “a lawyer shall not withdraw from employment until he has … deliver[ed] to the client all papers and property to which the client is entitled. …”
Further, the term “all papers and property” is almost certainly more archaic than 1969, as you can see glimmers of its primordial state in case law from the early twentieth century. For example, the Austin appeals court’s 1913 opinion in Thomson v. Findlater Hardware Co. states, “At common law an attorney has a lien … on all papers and money belonging to this client coming into this possession.”
The point being that the rule requiring lawyers to turn over all “papers and other property” was adopted when the client file was literally a collection of papers in a physical filing cabinet in Tom Hanks’ law office. In other words, the “client file,” whatever its contents, was a real thing that existed in the real world. It could be seen, felt, shredded and burned. Its very physicality was its limiting principle. Not so anymore.
So, to answer the question that I started with: Q. What is the client file? A. Maybe everything.
But it doesn’t need to be that way.
The attorney-client fee agreement can be a powerful thing. Not only does it set the terms by which the lawyer is to be paid for their services, but it can also, to an extent, regulate the lawyer-client relationship by agreement. According to TDRPC 1.02(b), “A lawyer may limit the scope, objectives and general methods of the representation if the client consents after consultation.” Indeed, the Texas Supreme Court in Nat’l Med. Enterprises, Inc. v. Godbey explained that “[i]n Texas law, an attorney-client relationship is contractual and results from the mutual agreement of the parties as to the nature of the work to be undertaken and the compensation to be paid.”
Hence, I see no reason why a lawyer and client could not specifically define what the “client file” is in their fee agreement. While no Texas case has addressed this specific issue, it is not a novel idea. For example, in the case of In re Skadden, Arps, Slate, Meagher & Flom LLP, the client entity experienced a change in control due to a settlement of an underlying dispute. The result was that the law firm’s client was now controlled by its litigation adversary. While the law firm immediately terminated its engagement, the former client demanded its “file” including internal communications between the law firm’s attorneys who worked on the matter. The law firm resisted as its fee agreement expressly defined what constituted the “client file” and that definition did not include internal communications.
The enforceability of the fee agreement was not an issue presented to the court of appeals, and so we do not have the benefit of knowing what a Texas appellate court thinks of such a contractual provision. Nonetheless, there is good reason to believe that the provision is not only enforceable but also consistent with the ethics rules, which, of course, are not the same thing.
TDRPC 1.16(d) only requires that a lawyer surrender to the client those papers and property for which the client is entitled to. Texas, like a majority of jurisdictions, has held that the client owns the “entire file,” including all attorney work-product. But there is nothing categorically unconscionable or unethical in a lawyer and client agreeing to terms that differ from underlying common law.
In terms of drafting provisions defining the “client file,” I think the best practice is to simply have the provision follow most people’s current intuitions informed by historical practice of what the client file ought to be. In a more traditional law practice that still maintains a comprehensive paper file for its engagements, then the provision could simply identify the paper file as the “client file,” outline what sort of documents shall be placed in the paper file and then explain that any other materials shall not be part of the client file and shall remain the sole and separate property of the law firm unless they are physically placed in the paper file. For those law firms that maintain electronic files, the concept would be the same, except that the provision would identify the specific electronic file which shall be defined as the “client file.”
As a final note, while I posed a hypothetical earlier in this article involving an angry individual client, the concerns raised by this article are probably more likely to arise in situations more like what we see in the Skadden case. Certainly, those concerns are more concerning in those situations.
When representing a single individual, not only are the sources and volume of communications and other materials more limited, but managing the relationship, including any exposure for malpractice, is much simpler. You know who exactly your client is, and their claims against you, if any, are not assignable, as the Houston appeals court noted in McLaughlin v. Martin.
Yet when representing entities, which is more often the case for the experienced business lawyer, the individuals in control of the client can be numerous and subject to change. Without warning, your zealous advocacy may be grounds for either a malpractice claim, derivative lawsuit or fraud claim from individuals you either had no dealings with while representing the client or may have been your open adversaries. In those situations, demands for your communications and work product will also raise thorny issues of privilege.
I will readily admit that my suggestion of clearly defining the client file in the fee agreement is not a “silver bullet” to these complex issues. But it will provide a much clearer and more reasonable framework for lawyers to work from when navigating our increasingly complex and litigious commercial landscape.
David Urteago is a partner at The Pettit Law Firm in Dallas. His practice is entirely dedicated to litigation with a focus on commercial and real estate matters. He can be contacted at durteago@pettitfirm.com.