Ethics Opinion

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.

Facts: The FDIC, claiming to stand in the shoes of a bank that was a client of the law firm, has made a demand upon the firm for all its files with respect to services rendered to the bank. We assume for purposes of this opinion that the status of the FDIC is such that it has succeeded to the bank's rights. The firm has offered to give the FDIC access to the files and to make copies of documents but, acting on the demand of its title insurance and malpractice carriers, the f irm has refused to turn over the original files. The firm also questions whether it must pay the estimated $5,000-$10,000 cost of copying.

Discussion: The firm has asked two questions. Is it required to turn over its original files in the first place, even assuming that it keeps copies of everything? Putting that question aside, if we assume that copies are going to be made, who pays the cost?
The new DR 2-110(A)(4) provides as follows:
An attorney must make available to a former client, within a reasonable time following the client's request for his or her file, the following:
(a) All papers, documents, and other materials the client supplied to the attorney. The attorney may at his or her own expense retain copies of any such materials.
(b) All pleadings and other papers filed with or by the court or served by or upon any party. The client may be required to pay any copying charge consistent with the attorney's actual cost for these materials, unless the client has already paid for such materials.
(c) All investigatory or discovery documents for which the client has paid the attorney's outof-pocket costs, including but not limited to medical records, photographs, tapes, disks, investigative reports, expert reports, depositions, and demonstrative evidence. The attorney may at his or her own expense retain copies of any such materials.
(d) If the attorney and the client have not entered into a contingent fee agreement, the client is entitled only to that portion of the attorney's work product (as defined in paragraph (f) below) for which the client has paid.
(e) If the attorney and the client have entered into a contingent fee agreement, the attorney must provide copies of the attorney's work product (as defined in paragraph (f) below). The client may be required to pay any copying charge consistent with the attorney's actual cost for the copying of these materials.
(f) For purposes of this Disciplinary Rule, work product shall consist of documents and tangible things prepared in the course of the representation of the client by the attorney or at the attorney's direction by his or her employee, agent, or consultant, and not described in paragraphs (b) or (c) above. Examples of work product include without limitation legal research, records of witness interviews, reports of negotiations, and correspondence.
(g) Notwithstanding anything in this Disciplinary Rule to the contrary, an attorney may not refuse, on grounds of nonpayment, to make available materials in the client's file when retention would prejudice the client unfairly.

While the inquiry lists some of the materials that are in the files -- title examinations, copies of title insurance policies, and original correspondence -- we will respond in terms of the categories of materials covered by new DR 2-110(A)(4), leaving to the inquirer the task of fitting the contents of particular files to the categories dealt with in the rule.
Since we are assuming that the FDIC stands in the shoes of the bank that was the firm's client, the firm must therefore comply, within a reasonable time, with DR 2-110(A)(4) in responding to its request for files. Sections 4(a) and (c) state that the firm "must make available" to the client documents supplied by the client and investigatory or discovery documents for which the client paid the out-of-pocket expenses, but that the firm may make copies for itself at its own expense. The assumption of SS4(a) and 4(c) is that the client is entitled to these documents in the firm's files either because the client owns them or because it has already paid the firm's out-of-pocket expenses to obtain them from others -- i.e., the actual cost of making the copy of the paper (or tape or disk) itself. We interpret the words "make available" in this context to require that the firm should turn the originals over to the client. Otherwise, the proviso that the firm may make copies for itself at its own expense would not make sense.
Sections 4(b) and 4(d) deal with different kinds of records -- copies of pleadings or other court papers that were prepared by the firm and filed with the court or served on parties; pleadings and other papers served on the law firm by other parties; and, most importantly, work product of the law firm. Typically, the law firm will have made no out-of-pocket charge with respect to all or some of these items. We turn first to S4(b), which provides that the client may be required to pay a copying charge with respect to these items, unless it has already paid for such materials. The wording of this brief sentence provides a very difficult problem of interpretation that also carries over into the interpretation of the more comprehensive S4(d), which is silent on the question of copying charges.
Two possible interpretations of the words "unless the client has already paid for such materials" seem apparent.
The first is that the whole rule assumes that when a client has paid for a lawyer's services, it has paid for all the paperwork generated in connection with the matter, or at least all that can be fit within the categories of papers mentioned in the DR 2-110(4). Boston Bar Association Opinion 92-2 (see footnote at conclusion of this opinion) appears to be drafted on this assumption, although it does not discuss the issue explicitly.
A second interpretation of the section is that it provides that the client is entitled to papers it has supplied and to all other papers for which it has paid, but that it does not address the question whether the client's payment for services generally entitles it to copies of SS4(b) and 4(d) papers without paying copying costs. That matter would be left to the contract of the parties and to substantive contract law, if the parties did not explicitly contract.
A problem with the first interpretation is that it casts a cloud over the many current contractual arrangements that require clients to pay copying charges if they want copies of SS4(b) and 4(d) documents. If payment of a fee for services gives an entitlement to these documents as a matter of the Disciplinary Rules, it seems doubtful that any client would knowingly enter into a contract that would place the burden of copying charges on it.
Another problem with this interpretation is that the rule only directs itself to requests made by "a former client." It does not therefore on its face prohibit an agreement between a law firm and a current client that addressed the matter of copying charges for SS4(b) and 4(d) items that would govern so long as the relationship was current. It would seem quite odd, however, that an agreement that imposed such charges on a client would be valid while the client was still a client but that the law firm would have to bear the cost thereafter by virtue of the rules.
Yet another consideration is that while the Disciplinary Rules often make assumptions about governing substantive law, they do not generally engage in wholesale creation of new substantive law. It is our conclusion, therefore, that the SJC did not intend, by adopting this Disciplinary Rule, to lay down a rule of substantive contract law governing entitlement, by reason of payment of a fee for legal services, to papers in lawyers' files in all situations covered by SS4(b) and 4(d). A rule with such a far-reaching effect would have been worded quite differently. That conclusion requires us to take a closer look at SS4(b) and (d) to determine who must bear copying costs.
We consider first the copy of a pleading or other document that was prepared by the attorney and filed with the court. If the attorney previously charged the preparation of the file copy to the client as a disbursement, then S4(b) does not permit a second charge to be made. In the words of the rule, "the client has already paid for such materials." If the attorney has not previously made such a charge, we interpret the rule as permitting such a charge when the client requests the file unless the contract of the parties, expressly or implicitly, provides that payment for services pays for copies of such documents. The issue, in our view, is a matter of substantive contract law. As we have said, we do not believe that the rule itself should be interpreted as written on an underlying assumption that the payment for a lawyer's services pays for every piece of paper generated by the lawyer in connection with the matter. Indeed, if that were the assumption of S4(b), it would not permit the law firm to impose any copying charges when the former client wants a copy of a pleading in the file, but the rule clearly does permit a charge to be made.
A pleading or other court paper served upon the attorney by the other side would not appear to be a document for which the client has paid. On our interpretation, S4(b) would seem to permit the law firm to make a copying charge for such a document. There is an argument that such a pleading ought to be treated as if it were a client-owned document, the service on the attorney being in reality a service on the client through an agent. But S4(b) does not differentiate between pleadings prepared by, and pleadings served upon, the attorney. If we are correct with respect to our analysis of the former class of pleadings, we believe that the latter should be treated the same way. If the SJC thought they should be treated differently, it would have placed pleadings served upon the attorney in S4(a). Moreover, the same argument would arise in analysis of correspondence received by the law firm -- assuming that it could be squeezed into one of the S4 categories or that the S4 rules are applied by analogy. There seems little warrant in the language of S4(f) (and S4(d)) for treating letters sent by the firm differently from letters received by the firm.
Our analysis of the words "unless the client has already paid" in S4(b) is critical when we turn to the issue of copying the firm's "work product." We assume that the firm did not perform services under a contingent fee agreement and that therefore S4(d) and not S4(e) applies to its "work product." Section 4(d) states that the client is entitled to work product (as defined in S4(f)) prepared by the firm in the course of representation for which the client has paid. It says nothing about copying charges and is to be contrasted with S4(e), which states that where a contingent fee situation is involved the client is entitled to the work product and may be required to pay a copying charge.
Sections 4(d) and 4(e) seem somewhat oddly drafted. Section 4(d) covers just the question of entitlement to the work product while S4(e) covers both entitlement to the work product and cost of copying. Section 4(e) is obviously concerned about a change of counsel in the midst of ongoing contingent fee litigation. The purpose of that section is to make sure that the client's litigation is not prejudiced. The client is to get the work product even though it has paid the lawyer no fee, but it should at least have to pay for the cost of copying. Whether the attorney is entitled to any payment for services is a matter of substantive law.
Where no contingent fee is involved, S4(d) provides that the client may obtain that which it paid for. As with our discussion of S4(b), we interpret S4(d) as leaving the contract of the parties to determine whether payment for legal services includes an entitlement to copies of work product without paying copying charges. For the reasons set forth in our discussion of S4(b), we do not believe that S4(d)'s failure to address the cost of copying should be understood as a declaration that the client's payment for the work product carries with it a payment for the cost of copying the work product for its own use. It would have been easy to add such a statement to this section if that were the desired meaning. We believe the more reasonable interpretation is that the section also leaves resolution of that issue to the contract of the parties.
Many contractual arrangements between lawyers and clients do not explicitly cover the situation, and in such event a court will have to imply the relevant term. Many law firms these days, however, have been entering into much more detailed agreements with their clients about payments of expenses. Whether there is an expressed or an implied term, however, the question involves a question of substantive contract law. This committee is forbidden under its rules from answering questions of substantive law. We therefore cannot venture an opinion as to the costs of copying work product because in our view substantive law, and not the Disciplinary Rules, governs this issue. If we are correct our interpretation of DR 2-110(4), however, payment for copying charges is a matter that henceforth should be a matter of explicit contract between the parties with respect to documents covered by SS4(b) and (d), and parties would be well advised also to cover correspondence files.
Another problem is the firm's obligation to pay the copying charges with respect to documents requested by the FDIC when it has previously supplied such documents to the bank. We find nothing in the rule that contemplates that a law firm must pay a copying charge for a document more than once. We therefore think that a fair interpretation of DR 2-110(A)(4) is that the firm is required to pay copying charges once for a client but not again for the client or for a successor to the client. We do not address the question whether there is any provision of substantive federal law relating to the FDIC that would supersede DR 2-110(A)(4) in this regard.
One further provision of DR 2-110(A) (4) should be noted. DR 2-110(A)(4)(g) qualifies SS 4(b), (d) and (e) by providing that "Notwithstanding anything in this Disciplinary Rule to the contrary, an attorney may not refuse, on grounds of nonpayment, to make available materials in the client's file when retention would prejudice the client unfairly." We do not have sufficient information to know whether this provision is applicable to any of the materials in the inquirer's files.l
1. One final point should be noted. It is apparent to us that BBA Ethics Opinion 92-2 is a response to the same inquiry that generates this opinion except that the inquiry directed to us said nothing about the lawyer not having been paid for work done for the bank. Unless there is some special reason, this committee will normally not respond to an inquiry if it knows that the inquirer has already received advice from another ethics committee. The committee is not a governmental body and exists only to provide a public service for lawyers who want assistance. It seems a prudent use of the limited time and resources of the committee to decline to give advice to a lawyer who has received advice elsewhere. Moreover, the possibility of conflicting advice may be confusing. The situation with respect to the present inquiry is different. The inquirer sought and received written emergency advice from the committee long before the BBA Ethics Committee issued its opinion. This committee thought the substance of the inquiry to be of public importance and had already prepared several draft versions of this opinion when the BBA Ethics Opinion appeared. Since our interpretation of the rule is somewhat different from that of the BBA Ethics Committee, we thought that it might be helpful to the bar to put our draft in final form for publication.