Legal Ethics

This Month's Topics: Termination of Representation and Related Client File Issues

When may or must a lawyer fire a client? If withdrawal from representation is permitted, how should it be accomplished? What rights to the client file does a client who has not paid fees demanded by a lawyer have? These questions are perennially the subjects of advisory opinions, commentary and discipline. Rule 1.16, as amended in 2005, is the main governing authority. I recently completed a draft chapter on Rule 1.16, running 23 pages. Here are some highlights.

1. How Representations Terminate

A. Representation or Relationship. Lawyers and clients often have ongoing relationships that include several discrete representations. Rule 1.16 governs terminating a discrete representation, rather than terminating a relationship in which there are no present representations. A comment aptly speaks of “representation in a matter. . ..” Rule 1.16 cmt. 1. Another comment addresses when “the relationship terminates. . ..” Rule 1.3 cmt. 4.

 B. Termination by Withdrawal. In Rule 1.16(a)-(c), termination is by withdrawing from an incomplete representation, rather than completing a representation. “Withdraw” is expressly used. Rule 1.16(a), (b).

 C. Termination by Completion or Resolution. Comments make clear that some representations are terminated, not by withdrawal, but by completion or resolution. “Ordinarily, a representation in a matter is completed when the agreed-upon assistance has been concluded. See Rules 1.2(c) and 6.5. See also Rule 1.3, Comment [4].” Rule 1.16 cmt. 1. Echoing this comment is another, “If a lawyer’s employment is limited to a specific matter, the relationship terminates when the matter has been resolved.” Rule 1.3 cmt. 4.

D. Is Notice of Termination is a “Fundamental Step” or Merely a Frequent Best Practice? An Office of Lawyers Professional Responsibility (OLPR) article asserts, of Rule 1.16(d), “The rule requires a lawyer to take reasonable steps upon termination of representation to protect the client’s interests. A fundamental step is to advise the client that representation has ended.” Timothy M. Burke, Avoiding Problems When Terminating Representation, MINN. LAW., Feb. 4, 2008 (Emphasis added). The article does not cite any authority for its claim of a “fundamental” requirement. The article does not cite the comments that termination may occur by completion or resolution. Rule 1.16 cmt. 1, Rule 1.3 cmt. 4. At such times, the client will often have no interests to protect. Moreover, many representations end when the client stops asking the lawyer for services, e.g. a client calls a lawyer periodically for several years to ask advice of a certain sort, then stops calling. Many other representations are clearly terminated by completion, e.g. all the documents for a transaction or an estate plan have been executed. In the author’s opinion, notice of termination of a representation is required in some circumstances, and is often a “best practice,” but notice is not “fundamental” or categorically required.

2. Three Qualifications to Some Clients’ Rights to Discharge Counsel

It is often stated, “Clients are always free to discharge an attorney and replace the attorney with someone else.” Martin A. Cole, Update on Law Firm Departures, BENCH & B. OF MINN., May/June 2010. To clarify, however, the rights of some clients to discharge counsel are subject to three potential qualifications.

A. In-House. First, although an organization that employs lawyers shares the general client right to discharge lawyers, the lawyers may have employment rights that allow the lawyers monetary remedies for wrongful discharge. Nordling v. Northern States Power Co., 478 N.W.2d 498, 501 (Minn. 1991). The nature of the employed lawyer’s duties to the organizational employer may affect the lawyer’s employment rights. Kidwell v. Sybaritic, Inc., 784 N.W.2d 220 (Minn. 2010).

B. Appointed Counsel. Second, a comment cautions, “Whether a client can discharge appointed counsel may depend on applicable law.” Rule 1.16 cmt. 5. This treatise does not address the substantive law of appointed counsel.

C. Client Capacity. Third, another comment cautions, “[T]he client may lack the legal capacity to discharge the lawyer, . . ..” Rule 1.16 cmt. 6.

3. “Good Cause”Tradition Amended

For approximately a century, the ABA followed principles that allowed discretionary withdrawal only for “good cause,” broadly defined. “The right of an attorney or counsel to withdraw from employment, once assumed, arises only from good cause.” Canon 44, ABA Canons of Professional Ethics. In 2005, however, Minnesota followed the ABA’s lead, permitting withdrawal even where there is no good cause, if there is no, “material adverse effect on the interests of the client.” Rule 1.16(b)(1). OLPR interprets Rule 1.16(b) to provide that, if there is no prejudice to the client resulting from withdrawal, a lawyer may withdraw from a representation, “for any good reason. . .or for no reason at all.” Martin A. Cole, At Odds With Your Client, BENCH & B. OF MINN., Sept. 1997.

4. “Other Good Cause” for Withdrawal

A. Broad Standard. The broadest standard for permissive withdrawal is “other good cause.” Rule 1.16(b)(7). Several examples of “good cause” are illuminating.

 B. Merely Questioning Veracity of Evidence. A lawyer has good cause for withdrawal, under Rule 1.16(b), where the lawyer “merely questions the veracity of the evidence,” according to an OLPR article. Craig K. Klausing, Dealing With Clients Who Lie: What Can You Ethically Do? MINN. LAW., Oct. 9, 1998. On this theory, criminal defense lawyers who offer evidence would often have grounds for withdrawal, although court permission might be difficult to obtain.

 C. Client Has Lost Confidence – “A Bunch of CRAP!” A relationship between lawyer (L) and client (C) was “a somewhat uncomfortable association from the beginning.” C was “loud, angry, and disrespectful.” L was slow to perform many tasks. C wrote to L, “I think this whole thing has turned into a bunch of CRAP!” L immediately responded that he wished to withdraw and requested that client find another lawyer in the very near future.” C filed an ethics complaint, OLPR issued an admonition, alleging a violation of Rule 1.16(b), L appealed, a Lawyers Board Panel affirmed and L appealed again. In re 94‑24, 533 N.W.2d 852 (Minn. 1995). The Supreme Court found there was no Rule 1.16(b) violation (although the admonition was sustained for the lawyer’s failure to return the file). The court explained, “A lawyer who believes that the client has no confidence in the lawyer's representation may not represent the client very effectively, and it is oftentimes in the client's best interest that the relationship be severed. In certain respects what constitutes justification depends on the timing of the withdrawal. A lawyer who withdraws on the eve of trial or during trial must have substantial justification for withdrawal, but when, as here, trial of a rather simple and straightforward matter is at least 6 months away, the breakdown of the working relationship between lawyer and client is ample justification.” Id. at 853.

5. Hot Potato, Cold Potato

A. Hot Potato Rule. As noted above, lawyer L may terminate a representation, of client C for “no reason,” where C will not suffer “material adverse effect.” Rule 1.16(b)(1). May L terminate representation of C for the purpose of undertaking a representation directly adverse to C (assuming the termination itself has no material adverse effect)? The “hot potato” rule, applied by many courts, forbade firing C for the purpose of becoming adverse to C. “A firm may not drop a client like a hot potato, especially if it is in order to keep happy a far more lucrative client.” Picker International v. Varian Associates, 670 F. Supp. 1363, 1365 (N.D. Ohio 1987). OLPR adopted the hot potato rule, issuing an admonition to L, where L terminated representation of C to take on a representation adverse to C. Marcia Johnson, Summary of Admonitions 1994, BENCH & B. OF MINN., Mar. 1995 at 15. OLPR explained that L violated Rule 1.16 by withdrawing “without just cause.” Id. OLPR’s position was stated again in Martin A. Cole, At Odds With Your Client, BENCH & B. OF MINN., Sept. 1997, at 16 and in Martin A. Cole, When Does a Current Client Become a Former Client?, MINN. LAW., Mar. 1, 2004. However, OLPR’s reasoning and most of the relevant judicial decisions antedated adoption of Rule 1.16(b)(1).

B. Hot Potato Reconsidered. Rule 1.16(b)(1) allows withdrawal, regardless of good cause, if withdrawal will not cause the client “material adverse effect.” Id. Rule 1.16(b)(1) allows withdrawal regardless of motive. If the withdrawal itself can be accomplished without material adverse effect, the fact that the withdrawing lawyer will represent another client, on an unrelated matter, against the now-former client, does not appear to violate Rule 1.16. A leading commentary would not apply a hot potato disqualification in these circumstances. 2 Geoffrey C. Hazard, Jr., W. William Hodes & Peter R. Jarvis, The Law of Lawyering § 20.10 at 20-26 (3d ed. 2005-2 Supp.). The Restatement of the Law Governing Lawyers § 32 cmt. c has taken a position opposite to that of the Hazard commentary, but the Restatement position antedates amendment of Rule 1.16.

C. Cold Potato Corollary. Where a lawyer has represented a client regularly, but has no current representations that are incomplete, the law may still provide that there is an ongoing attorney-client relationship. The authorities on this issue are discussed, under “Representation or Relationship” in the chapter of this treatise on the attorney-client relationship. Rules 1.3 and 1.16 do not restrict a lawyer from terminating a relationship, where there are no incomplete representations. In the author’s opinion, a lawyer may terminate such an attorney-client relationship, where there is no incomplete representation, for the purpose of taking on a new representation that is directly adverse to the client in the relationship.

6. Confidentiality Problem in Seeking Permission of a Tribunal to Withdraw

A. Confidentiality Problem. Where a lawyer wishes to withdraw from a case pending before a court, without substitute counsel, permission of the tribunal is required in criminal cases in Minnesota state court and in all cases in federal court. Rule 1.16(c), Edward J. Cleary, Withdrawing as Counsel, BENCH & B. OF MINN., Nov. 1999; Kenneth L. Jorgensen, Ethical and Procedural Withdrawal Requirements, MINN. LAW., Nov. 4, 2002. What client information may a lawyer disclose, to explain why a tribunal should permit withdrawal? The answer is far from clear. A comment notes, “Difficulty may be encountered if withdrawal is based on the client’s demand that the lawyer engage in unprofessional conduct.” Rule 1.16 cmt. 3. Similar difficulty may be encountered where withdrawal is based on other grounds, such as conflict of interest or non-payment of fee. Whatever the source of difficulty, the comment identifies a problem, “The court may request an explanation for the withdrawal, while the lawyer may be bound to keep confidential the facts that would constitute such an explanation.” Id. Rule 1.16 does not provide any exception to the general confidentiality requirement of Rule 1.6(a).

B. Confidentiality Exceptions? Rule 1.6(b), which permits disclosures in ten circumstances, does not directly include permission to disclose for purposes of seeking permission to withdraw. If a false statement or false evidence has been provided to the court, a disclosure mandated by Rule 3.3 could also serve as a basis for a motion to withdraw. Rule 3.3 cmt. 15. But more general disclosure permissions, such as “to comply with other law or a court order,” do not necessarily provide a basis for disclosing information that the client has requested “beheld inviolate,” or that the client would regard as “detrimental,” in the sense of losing an advocate whom the client wished to continue to retain. Rule 1.6(b)(2), (9). However, in U.S. District Court in Minnesota, a lawyer who seeks court permission to withdraw “must show good cause.” Local Rule 83.7(c). Especially where permission to withdraw is sought because withdrawal is mandated by Rule 1.16(a)(1), e.g. client fraud or an unresolved conflict, a lawyer proceeding under Rule 83.7(c) arguably is permitted under Rule 1.6(b)(9) to make necessary disclosure of client information.

C. Suggested Statement. A comment states, “The lawyer’s statement that professional considerations require termination of the representation ordinarily should be accepted as sufficient.” Rule 1.16 cmt. 3. Whether courts actually will accept this cryptic explanation is far from clear. “Professional considerations” could, as the comments note, mean anything from a client demanding the unethical, to a client who is unable to pay a bill. In the author’s experience, federal judges are disinclined to regard their own convenience, whether in dealing with a represented party who will become pro se or in delaying proceedings, as less important than a lawyer’s interest in being paid.

D. Is There Permission to Disclose “Limited Confidential Information?” Three Commentaries and a Case

 1. OLPR. OLPR has discussed numerous factors related to fee disputes and court permission to withdraw. The presupposition of the discussion is that the court will have been informed on these factors. Edward J. Cleary, Withdrawing as Counsel, BENCH & B. OF MINN., Nov. 1999.

 2. Leading Commentary. A leading commentary approves broader disclosures than the Rules and comment appear to permit. An illustration in the commentary contemplates a lawyer (L) who faces an imminent trial, and has repeatedly warned the client (C) that if L’s fees are not paid, L will seek permission to withdraw. At a conference with the court and opposing counsel, “L asks permission to withdraw, stating that she and C ‘no longer see eye to eye about how this case should go forward.’ When pressed by the court for a reason, L discloses the outlines of the dispute with C.” 2 Geoffrey C.Hazard, Jr., W. William Hodes & Peter R. Jarvis, The Law of Lawyering § 20.11 (3d ed. 2005-2 Supp.) illustration 20-7. The commentary explains, “L solved this dilemma appropriately by disclosing limited confidential information about C.” The commentary does not cite authority for a lawyer to disclose “limited confidential information” in the situation. The commentary approves an initial, cryptic explanation (“no longer see eye to eye”) that suggests the withdrawal would be for “fundamental disagreement,” under Rule 1.16(b)(4), rather than non-payment, under Rule 1.16(b)(5).

 3. Yesteryear. A leading commentary of an earlier era stated, “The mere fact that he strongly suspects fraud by his client, . . .justifies the lawyer in advising the court and withdrawing.” Henry S. Drinker, Legal Ethics 141 (1953). Citations omitted. The same commentary stated, “When he finds that the client has no case and the client has disappeared, he can move for leave to withdraw, advising all concerned.” Id. at 142.

 4. Case Law Support. The permission for limited disclosure found in the commentaries seems to be supported in some case law, where the lawyer’s reasons for seeking leave to withdraw have been made known to the court, without improper disclosure being found. For example, a case allowed withdrawal, over client objections, where the client did not respond to a lawyer’s communications. Stillpass v. Mortgage Financing Planners, No. 07-2323 (D. Minn. July 17, 2009).

7. Lawyers Board Opinion 13 and the Problem of Defining the Client File

A. Lawyers Board Opinion 13 – Before 2001. Opinion 13, issued in 1989, first provided of the files and papers to which a client was entitled on termination. Opinion 13 was issued to eliminate or reduce disputes about client entitlements to files. Opinion 13 served these functions well. However, Opinion 13 had a foundational problem – the Board and OLPR “were under the mistaken impression that an implicit delegation of authority had occurred, allowing the board to issue and enforce opinions that expanded and clarified existing prohibitions.” Edward J. Cleary, Ethics and the Board: the Court Draws the Line, BENCH & B. OF MINN., May/June 2001. This “impression” was supported in cases in which the Court found that a lawyer violated both Rule 1.16 and Opinion 13, e.g. In re X.Y., 529 N.W.2d 688 (Minn. 1995). However, in 2001, the Minnesota Supreme Court emasculated Opinion 13.

B. In re Admonition 99‑42, 621 N.W.2d 240 (Minn. 2001)

 1. In this case, A lawyer (L) declined to furnish a transcript to a former client (C). L had paid for the transcript, but C declined to pay for the transcript or for L’s fees. After C filed an ethics complaint, L furnished the transcript to C.

 2. Nonetheless, OLPR issued a private admonition to L. The admonition – unlike almost all disciplines issued – did not allege violation of any Rule, but instead alleged only violation of Board Opinion 13. L appealed, but a Board Panel affirmed. L appealed to the Minnesota Supreme Court.

 3. The Court reversed. The Court held that Opinion 13 was not enforceable independent of Rule 1.16(d). “We therefore conclude that violation of a Board opinion does not constitute the ‘unprofessional conduct’ that is a prerequisite for the issuance of an admonition.”
 
4. The Court not only reversed, but greatly reduced the presumed status that Board opinions, “We therefore recognize Board opinions as rule interpretations that guide attorneys’ professional conduct even though they are not binding on this court. Pursuant to Rule 4(c), RLPR, Board opinions that interpret pre-existing rules without either effectively creating new rules of professional conduct or exceeding the scope or plain meaning of the rules are entitled to careful consideration. However, an attorney will not be subject to discipline unless there is clear and convincing evidence of conduct that violates the Minnesota Rules of Professional Conduct.”
 
C. Repeal of Board Opinions. The Court’s holding in 99-42 caused the Board to recognize that enforcement of Opinions 11 and 13 “has been seriously impaired.” Charles B. Bateman, Opinions of the Lawyers Board, BENCH & B. OF MINN., Nov. 2002. After 99-42, the Board repealed several opinions, including Opinion 11, because they were not well-anchored in the Rules. Opinion 13 has not, however, been repealed, despite its “seriously impaired” status.

D. 2005 Amendments. In 2005, Rule 1.16(e)-(g) were added to the Rule. “Rule 1.16(e)-(g), MRPC, incorporated substantially all of former Lawyers Board Opinion No. 13 into the MRPC, identifying what are client papers and property, saying when clients may be charged for copying costs, and prohibiting conditioning return of a file upon payment of fees or copying costs.” Martin A. Cole, Advisory Opinion Sampler, BENCH & B. OF MINN., Sept. 2009. As explained below, however, the codification of Opinion 13 into Rule 1.16 was incomplete and produced some continuing issues.

E. Lawyers Board’s Inexplicable Refusal to Repeal Opinion 13. After 99-42, in 2001, and the Rule 1.16 amendments, in 2005, Opinion 13 has had no continuing authority or utility. Opinion 13 continues to purport to add to Rule 1.16 amendments a general standard, “A lawyer may withhold documents not constituting client files, papers and property until the outstanding fee is paid unless the client’s interests will be substantially prejudiced without the documents.” Id., emphasis added. After 99-42 made clear that the Board opinions could not exceed “the scope or plain meaning of the rules,” Opinion 13 nonetheless plainly continues to exceed Rule 1.16. Rule 1.16 does not require a lawyer to provide a former client with documents that are not defined as client “papers and property,” even where the client will be substantially prejudiced. Rule 1.16 itself provides that transferring documents “to which the client is entitled” is an example of mitigating prejudice. Rule 1.16(d). Rule 1.16 does not provide a general entitlement to the file, or an additional entitlement, based on mitigating prejudice. The Lawyers Board’s failure to repeal Opinion 13 and Opinion 13’s attempt to add a “substantially prejudiced” criterion to Opinion 13 are unjustifiable in the law. Regarding Board opinions, OLPR has recognized the difference between an obligation and a best practice, “Even those opinions that do not correlate to a rule provision, remain, at the very least, the best practice.” Edward J. Cleary, Ethics and the Board: the Court Draws the Line, BENCH & B. OF MINN., May/June 2001. OLPR has also recognized the primacy of Rule 1.16, “Although Opinion 13 has never been repealed, attorneys seeking to determine exactly what must be produced should first look to the language of the current Rule 1.16(e).” Robin J. Crabb, The Perils of Holding Client Files Hostage, MINN. LAW., Jan. 3, 2011. If the Board will not repeal the portion of Opinion 13 that purports to add a “substantially prejudiced” test, OLPR should plainly state that it will not enforce that test.

8. CLIENT PAPERS AND PROPERTY – ENTITLEMENT ISSUES

A. “To Which the Client is Entitled.” Among the duties of a lawyer withdrawing from representation is “surrendering papers and property to which the client is entitled. . ..” Rule 1.16(d). Minnesota follows Model Rule 1.16(d), which leaves to state law any determination of entitlement. Minnesota Rule 1.16(e) describes several categories that are included in the “paper and property to which the client is entitled. . ..”

B. “Included” Papers. Although Rule 1.16(e) describes categories which are “include[d]” among papers and property to which the client is entitled, the Rule does not state a general criterion by which other, non-listed items could be added to the “include[d]” list. To discipline a lawyer for not surrendering an item not on the list, OLPR would have to show that the law of personal property, or the common law, or some controlling legal authority, made the client “entitled” to the property.

C. “All Representations” – Rule 1.16(e)(1). Clients are entitled to return of what was given to the lawyer by them or their representatives. In addition, paying clients are entitled to “the papers and property for which the client has paid the lawyer’s fees and reimbursed the lawyer’s costs.” Rule 1.16(e)(1).

D. All Representations – Board Opinion 13. As discussed above, Board Opinion 13 attempts to add to the Rule another obligation, as to all representations. This purported addition is that even items that do not fit the Rule’s definition of client papers and property must not be withheld if “the client’s interests will be substantially prejudiced without the documents.” Opinion 13. For the reasons stated above, the author regards this addition as an attempt to expand the Rule that is invalid under the holding in 99-42.
 
E. “Pending Claims or Litigation Representations” – Additional Entitlements. In “pending claims or litigation representations,” paying and non-paying clients are entitled to documents that have been “served or filed.” Rule 1.16(e)(2)(i). These clients are also entitled to “all items for which the lawyer has agreed to advance costs and expenses regardless of whether the client has reimbursed the lawyer. . .,” such as “depositions, expert opinions . . .and other materials that may have evidentiary value.” Rule 1.16(e)(2)(ii). What if the lawyer has not yet paid for, or obtained, the materials in question? For example, if a court reporter has been paid for appearance at depositions, but has not yet transcribed the deposition, does Rule 1.16 require the lawyer to order, pay for, and transmit to the non-paying client a deposition transcript? The author does not interpret Rule 1.16 to include such a requirement. Rule 1.16(e) interprets Rule 1.16(d), which prescribes “surrendering” papers. “Surrendering” connotes having the documents in possession.

F. “Pending Claims or Litigation Representations” – Not Entitled. A non-paying client in pending litigation is not entitled to documents in the lawyer’s file that have not been served or filed. Among these would be lawyer notes and internal memoranda. A non-paying client in pending litigation is also not entitled to documents which have not yet been obtained from third parties, such as deposition transcripts and expert opinions, at least where the lawyer has not yet incurred an obligation to pay. Rule 1.16(e)(2)(i).

G. “Non-Litigation or Transactional Representations”- Items Not Included. Unlike litigation matters, for non-litigation matters, Rule 1.16 does not provide any additional entitlement beyond that provided for all representations in Rule 1.16(e)(1). Instead, for non-litigation matters, Rule 1.16 identifies only items to which a non-paying client is not entitled. Rule 1.16(e)(3). Where the client has not paid the lawyer’s fee, the client is not entitled to drafted but unexecuted documents. Is the non-paying client entitled to executed documents? Rule 1.16 and its comments do not attempt an answer to this question. In short, there is no Rule expressly requiring a lawyer to provide a non-paying client with executed or unexecuted non-litigation documents.

H. Attorney Notes. Rule 1.16 does not give a nonpaying client a right to a lawyer’s notes. Rule 1.16(2), (3). Must a lawyer give a paying client the lawyer’s notes? The paying client is entitled to “the papers. . .for which the client has paid the lawyer’s fees. . ..” Rule 1.16(e)(1). An OLPR article addressed this issue, but from the perspective of Opinion 13, before the 2005 amendments of Rule 1.16. Kenneth L. Jorgensen, Is a Client Entitled to the Lawyer’s ‘Notes”?, MINN. LAW., Aug. 23, 1999. The article noted the difficulty in defining “attorney notes.” Id.

I. Memoranda. The Restatement states, “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.” Restatement (Third) of the Law Governing Lawyers § 46 cmt. c (2000). It might be said that some such documents are not part of “the file,” and the firm will normally not have charged the client for such documents as an internal memo discussing whether to withdraw. However, a law firm’s alleged failure to provide substitute counsel with the firm’s research memo, questioning the soundness of the firm’s advice in light of recent cases, provided a basis for denial of the firm’s motion to dismiss a malpractice claim. The motion was based on the statute of limitations, but plaintiff successfully argued that the alleged failure to provide the memo could, if proven, toll the statute on grounds of fraudulent concealment. JJ Holand Limited v. Fredrikson & Byron P.A., Civil No. 12-3064, 2013 WL 3716948 (D. Minn., July 12, 2013). The court did not state whether the firm charged the client for the memo.

I. Joint Clients. Normally, where a lawyer represents more than one client jointly, each and every client has a right to a copy of the client file. Rule 1.7 cmts. 30, 31. It may be that there are some situations, involving numerous clients and a voluminous file, where a lawyer would not be reasonably required to provide every client with a full copy of the file.

J. Insurance Defense File. When a lawyer is retained by an insurer, to defend the insured, the client is always the insured, and the insurer is also a client only when there is no conflict and there is express agreement. Pine Island Farmers Coop. v. Erstad & Riemer, P.A., 649 N.W.2d 444 (Minn. 2002). A lawyer in these circumstances, who refused to provide his entire file to the insured, violated Rule 1.16(d), and received an admonition. Edward J. Cleary, Summary of Admonitions, BENCH & B. OF MINN., Mar. 2000.

K. Transfer Requests and Authorization. File transfer requests sometimes raise authorization issues. The lawyer should consider whether providing the file would violate confidentiality duties, because the client has not authorized transfer to the person making the request. For example, a lawyer may, without notice from a client or former client (C), receive a request from another lawyer, who now purports to represent C, for transfer of C’s file. The lawyer may decline to provide the file until C confirms the new representation.

L. Prompt Transfer. Rule 1.16(d) does not state a time for transfer of client files. The time may be inferred from the Rule’s stated purpose, namely acting “to the extent reasonably practicable to protect a client’s interests. . ..” When a client demands immediate transfer, a lawyer may normally respond that transfer will be made after a reasonable time for copying the file. Especially where lawyers departing a firm demand all files of transferring clients, the firm may ask the lawyers to prioritize the file needs. Lawyers who delay several months in file transfer have received admonitions. Martin A. Cole, Summary of Admonitions, BENCH & B. OF MINN., Feb. 2011; Martin A. Cole, Summary of Admonitions, BENCH & B. OF MINN.,Feb. 2010; Marcia A. Johnson, Summary of Admonitions, BENCH & B. OF MINN., Feb. 1993.

M. Manner of Transfer. If the client has transferred original documents, originals should be returned. Rule 1.16(e)(1). For other documents, the Rule does not prescribe the manner of transfer.

9. Fees, Copying Costs

A. Overview. Rules 1.16(d), (f) and (g) address financial issues related to termination of representation.

B. Refunds. A lawyer’s obligations on termination of representation include, “refunding any advance payment of fees or expenses that has not been earned or incurred.” Rule 1.16(d). Failure to make such a refund warrants an admonition. Martin A. Cole, Summary of Admonitions, BENCH & B. OF MINN., March 2007. An admonition was also issued where the failure to refund appeared to have been inadvertent. Kenneth L. Jorgensen, Summary of Admonitions, BENCH & B. OF MINN., Apr. 2004.

C. Agreement Required to Charge Copying Costs. An OLPR article summarizes the leading case on copying costs, “In In re X.Y., 529 N.W.2d 688 (Minn. 1995), the Minnesota Supreme Court stated that when an attorney copies the client file at the termination of the representation, the copy is actually being made for the benefit of the attorney. Under Rule 1.16(f), the attorney is permitted to charge the client reasonable copying and retrieval costs only if the client has agreed to such charges, in writing, prior to the termination of the representation.” Robin J. Crabb, The Perils of Holding Client Files Hostage, MINN. LAW., Jan. 3, 2011. In this case, the respondent lawyer provided a copy of the file to the client, and sought payment afterwards. In affirming an admonition to the lawyer, for charging copying costs without express agreement, the Court rejected the argument that an engagement letter requiring the client to pay “expenses” and “costs” was sufficient for the lawyer to charge copying costs. Id. at 690. Another admonition was affirmed where the lawyer initially refused to transmit the file without payment of costs, but eventually transmitted the file. In re 94‑24, 533 N.W.2d 852 (Minn. 1995).

D. Holding Client File Hostage.Even where the client has agreed in writing to pay copying costs, the lawyer may not condition “return of client papers and property” on payment. Rule 1.16(g). For clarification, however, it should be noted that Rule 1.16(g)’s restriction applies only to “client papers and property,” as defined in Rule 1.16(e), not to the remainder of the client file. Another OLPR article makes the point more clearly, reporting an admonition to a lawyer who conditioned “return of client papers” on payment of copying costs. Martin A. Cole, Summary of Admonitions, BENCH & B. OF MINN., Apr. 2009. An admonition was issued to a lawyer who would not provide a client file without pre-payment, even though the lawyer had no agreement for such payment and the Rule would not allow such retention even with an agreement. Kenneth L. Jorgensen, Summary of Admonitions, BENCH & B. OF MINN., Mar. 2005.

Recent Case Update:

Termination by Suspension or Disbarment, Notice Requirements, and OLPR’s Pronouncements From the Spirit World

A. Rule 26. A lawyer who is suspended or disbarred may no longer represent clients and must withdraw from representations. If the lawyer expects to lose his or her license, the lawyer may withdraw before the court’s order. Withdrawals in anticipation of losing a license will typically be more orderly than waiting for an unknown day, when withdrawal is ordered. Lawyers who do not withdraw from all client matters in advance of suspension or disbarment must notify clients, tribunals and others of their suspension or disbarment. Rule 26, R. Law. Prof. Resp.
 
B. OLPR Argues a Lawyer “Violated the Spirit of Rule 26.” OLPR recently opposed a petition for reinstatement after disbarment, in part because the petitioner, while having complied with the letter of Rule 26, allegedly failed to comply with the purported “spirit of Rule 26.” In re Lieber, A10-1705 (Minn. July 31, 2013). OLPR argued, “that Lieber’s conduct violated the spirit of Rule 26 and demonstrates a lack of moral change. . ..” Id. at 14.

C. Advice and Testimony. The court’s opinion recites that in the proceeding leading to disbarment, I advised Lieber that, if he sold his law practice before the disbarment order was issued, he would no longer have clients, and would not be required by Rule 26 to give notice of his disbarment. Lieber followed my advice. I testified at the reinstatement hearing regarding my advice to Lieber. OLPR cross-examined by repeatedly asking whether Lieber failed to follow the “spirit” of Rule 26. I testified that Rule 26 had no spirit. OLPR did not present any evidence of the “spirit’s” existence, but relied on its own assertions.

D. The Danger of OLPR’s Argument. The Rules on Lawyers Professional Responsibility (RLPR), including Rule 26, are procedural rules. In the approximately 40 year life of the RLPR, no one has ever before discerned a “spirit” hovering over the RLPR. If Rule 26 has a “spirit,” then other RLPR may well have spirits, or penumbrae, or subtexts. If, after the relevant events occur, OLPR can unilaterally declare, for the first time, its discernments from the world of procedural spirits, lawyers who try to follow the RLPR, and even seek expert advice in doing so, would not be able to rely on the text of the rules or on expert advice. To oppose a single reinstatement petition, OLPR argued for a principle, that, if accepted by the Minnesota Supreme Court, would make the RLPR unreliable. Such unreliability would be calamitous for lawyers and for OLPR.

E. Ruling The court rejected OLPR’s spirit argument, “But those seeking guidance from our rules should be able to rely on those rules, and what Lieber did here is more than mere elevation of form over substance. He did what the rule requires.” Id. at 15. The court granted Lieber’s reinstatement pet