Who owns a legal case file depends on the answers to a few questions:
what jurisdiction are we talking about? What's in the file? And, what
parts of the file were provided to the client during the course of the
representation?
Ownership of the client file is governed by state law so there is some
variance from state to state, and the overall lay of the land is
evolving over time. In most states, the client or ex-client has at
least some sort of property rights in the file, with the lawyer
generally retaining some sort of co-ownership right to retain a copy of
it. That means, that for as long as the file is around, the client at
least has the right to ask for and receive a copy of all or part of it
(who pays varies by state). Further, in most states, the lawyer has a
duty not to prejudice the rights of the client or ex-client by disposing
of parts of the file that the client might reasonably be expected to
need in the future. Thus, even if the client doesn't ask for a copy of
the file, the lawyer can't dispose of it without first making some sort
of determination that there is nothing in it the client might need to
preserve some substantial right in the future. If a determination is
made that the client might need some of the file to preserve those
substantial rights, then either the lawyer must locate the client and
provide that material to them or retain it in case the client needs it
in the future. That's why it's important to make sure that the client
has copies of all important pleadings, orders and other documents during
the representation. Failure to do so may complicate disposition of the
file if the lawyer loses contact with the client after the close of the
representation. If the client file contains any client property such as
for example, original client documents, or things like minute books from
corporate meetings, those items remain client property indefinitely and
can't be disposed of without permission from the client. In all these
cases, the lawyer is generally under a duty to make reasonable efforts
to locate a client before disposing of the file, and to preserve client
property.
One other thing to think about is that a lawyer has a duty to preserve
the conferences and secrets of the client. Thus, as a general
proposition, the client file can't be turned over to an archive or
museum without permission from the client, since doing so would expose
the client's confidences and secrets to the public without the client's
permission.
The above is a sort of general overview, and the exact situation will
vary by state. In some states the file is unequivocally regarded as the
clients property, bought and paid for with their money; and in a couple
of states, it's still regarded as basically the lawyer's property. The
clear trend however, is towards the former and away from the latter.
--
Best regards,
John
John Montaņa
Montaņa & Associates
29 Parsons Road
Landenberg Pennsylvania 19350
610-255-1588
484-653-8422 mobile
[log in to unmask]
www.montana-associates.com
twitter: @johncmontana
List archives at http://lists.ufl.edu/archives/recmgmt-l.html
Contact [log in to unmask] for assistance
To unsubscribe from this list, click the below link. If not already present, place UNSUBSCRIBE RECMGMT-L or UNSUB RECMGMT-L in the body of the message.
mailto:[log in to unmask]
|
