Does My Attorney Have to Give Me My File?

If you’re dissatisfied with your lawyer’s efforts to fight for you, are switching to a new attorney, or simply curious to see what it says, you may be wondering: am I legally allowed access to the file documenting my case?

Whilst the majority of legal practices tend to send physical or electronic copies of correspondence or documents to their clients as a given, others do not, but should you request them, they are obligated to provide you with your file.

It may be the case that your attorney charges you a small reproduction fee for providing copies at your request, but unfortunately, there is little you can do to avoid this (bar suing) if you want access, as they are within their rights to do so.

In terms of entitlement, as the client, all documents that compose your file are your property, and therefore you are legally entitled to them - there are only a couple of valid reasons your attorney could have for withholding them. These are:

If they have taken a lien on your property because you have not paid your fees, which essentially means that you cannot access your files until the remaining balance has been cleared.

If the court has ordered your attorney to withhold the file for whatever reason, placing the decision outside of their control, so your lawyer is legally unable to provide you with them.

If releasing the information violates duty to a third party or could cause you significant harm, but this is usually only in limited and very specific cases, so you’d likely be aware if that was the case with your claim.

What exactly am I entitled to see?

Any factual documentation that directly pertains to your case, such as a deposition testimony, court filing or any other correspondence between parties, as these are vital pieces of information for your new attorney.

When it comes to products of working on your case, like the attorney’s personal notes and theories regarding the law, the rules differ on a state by state basis. In Washington DC, for instance, you’re entitled to absolutely everything - even scraps!

Just because your state doesn’t legally require your lawyer to provide you with everything, that doesn’t mean you can’t ask for more though. If you’ve had a decent relationship or are parting on good terms, they may still comply with your wishes.

The following is an example of a drafted letter, if you’re struggling to word your request:

__________________

[Date] 

[Lawyer’s Name]

[Legal Services]

[Address]

SUBJECT: Letter To Attorney, Requesting Access To Documents

For The Attention Of [Lawyer’s Name]

I write in regards to [Case No.] as your client. I am requesting access to my documentation, in accordance with the following legislation [State Law Reference] which entitles me to receive any records and correspondence related to my case.

Please [send by email/postage/have these ready for me to collect from the office in person] by the following date [insert the date a week following receipt of the letter]. 

If you wish to include any of your own personal notes regarding the case, I would be grateful to see those, too. 

Thank you for complying in a timely manner.

All best wishes,

[Your Name, Address]

_________________

I have fired (or want to fire) my lawyer - what about then?

Not to worry: switching attorneys, even in the middle of a case, is a common occurrence, so you’re still well within your rights to request your file - if not more so! Do bear in mind, though, that your lawyer still has a duty to maintain confidentiality.

This means that if your new attorney’s office is requesting access to the file on your behalf, you will need to provide express informed consent to your previous lawyer for them to transfer this information, usually provided in writing. 

According to the Bar Counsel’s Rules of Professional Conduct, under Rule 1.16(d), "an attorney shall take steps to the extent reasonably practicable to protect a client's interests, such as... surrendering papers and property to which the client is entitled." 

Even if you are terminating their services or parting on bad terms, they are still legally obligated to provide you with the requested documents, and failure to do so means you’re within your rights to file a grievance.

Refusing to provide you with your own property puts the attorney in question at risk of a civil lawsuit, for the conversion and breach of fiduciary duty, and therefore very few are likely to keep files from you without a damn good reason.

If you are struggling to get a reply from them by email or through a written letter, let them know you’ll be stopping by the office on a specific day at a set time, so they have plenty of time to gather up everything you’ve asked for.

All of that said, though, you should still try and be as polite, courteous and civil as possible in all communications with the former lawyer and their office. Do your best to make clear that the termination isn’t a personal decision… unless it is!

My lawyer won’t surrender my file - what do I do?

First things first, take a breath. You’ll get the file eventually, so there isn’t a big issue here! If, so far, you’ve only tried asking yourself, you could ask your new attorney to request the files on headed stationery from their firm, as this may spur them on.

In the event that you don’t have a new attorney, you’re going to need one if it gets as far as filing a civil lawsuit, so you may want to start looking. Once they’re all up to speed on the situation, they should be able to help you out.

Even if you’re being refused file access because of an outstanding payment, it’s very unlikely that the attorney in question would have support from the courts for doing so, in the event that this goes to trial. 

It could be worth sending the letter on headed stationery with an included reminder about their legal obligations to you, specifically quoting from the bar association in your state, as a reminder that you’re aware of your legal rights too!

When none of this works, your only option is to take them to court. 

Disclaimer

Thank you for visiting. This website is for informational purposes only. None of the information provided is intended to constitute, nor does it constitute, legal advice, and none of the information necessarily reflects the opinions of Misty Rock Capital LLC dba whocanisue.com or anyone associated, employed or affiliated with Misty Rock Capital LLC dba whocanisue.com.