1992

  • Opinion No. 92-4
    Summary: When a client demands papers from a law firm, DR 2-110(A)(4) provides the following rules. If the firm has documents supplied by the client, or investigatory or discovery documents for which the client has paid out-ofpocket expenses, the f irm must turn them over to the cl ient but may keep copies at its own expense. Pleadings or other papers f iled with or by the court or served by or upon a party should also be made available to the client, but the client may be required to pay copying charges unless it has already paid for the materials. The rule does not address the question whether the client "has already paid" for such materials prepared by the firm. That is a matter of substantive contract law that the committee may not address.
    DR 2-110(A)(4) also requires the firm to make available to the client "work product" for which the client has paid. Where the work has been done under a fee agreement that is not contingent, the payment of copying charges is also to be determined by interpretation of the fee contract, a matter of substantive law. Since the "client" in this case is the FDIC, as successor to the firm's former bank client, the rule does not require the f irm to pay copying charges for any papers with respect to which it previously paid a copying charge in supplying them to its former client. Finally, DR 2-110(A)(4)(g) provides that the attorney may not refuse, on grounds of nonpayment, to make available materials in a client's file when such refusal "would prejudice the client unfairly."
    If this interpretation of DR 2-110(A)(4) is correct, it is now advisable for parties to contract explicitly with respect to payment for copies of materials covered in SS2-110(A)(4)(b) and (d) and also for copies of correspondence.
  • Opinion No. 92-3
    Summary: It would violate DR 5-105 if Law Firm undertook to represent long-term Client B directly against the interests of current Client A even though it withdrew from its representation of Client A in unrelated, but ongoing litigation, when that withdrawal is over Client A's objection. Various arguments against that interpretation of the rules are considered and rejected. The committee is not prepared to advise in this opinion about the permissibility of advance consent clauses that would permit such simultaneous representation.
  • Opinion No. 92-2
    Summary: Representation of Y, as executor, will be regarded as representation of Y, individually, for conflict of interest purposes when Y is virtually the sole beneficiary of the estate. Therefore, an attorney who represents Y as executor in such circumstances may not advise selectmen about their ability to revoke the liquor licenses of A, B, and C for nonpayment of taxes when Y, in his individual capacity, is in the same position, unless the attorney advises only about issues that are not relevant to Y's situation. Consent of both Y and the selectmen would not change our advice because it is not obvious that the attorney may adequately represent the interest of each client in such a situation.
  • Opinion No. 92-1
    Summary: An attorney may not pay a referral fee to a co-executor of an estate who hired him as "the attorney for the estate."
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