By Roy Simon [Originally published in NYPRR July 1998]
In NYPRR April 1998 issue, we discussed what a lawyer should do if a former client fails or refuses to take custody of an old file. Now, we discuss the converse: What must a lawyer do when a client (or her new lawyer) demands “your entire file”? What do you have to provide, and at whose expense? The Court of Appeals decided this issue in the important case of Sage Realty Corp. v. Proskauer Rose Goetz & Mendelsohn [91 N.Y.2d 30 (1997)].
In Sage, the client had retained a new law firm, Nixon, Hargrave, to take over a real estate matter from the Proskauer firm. On behalf of its new client, Nixon Hargrave sought Proskauer’s entire file.
The Court of Appeals, reversing the lower courts, held that a former client that has paid its legal bills is presumptively entitled to the attorney’s “entire file,” subject to narrow exceptions. In reaching this holding, the Court of Appeals rejected New York’s prior leading case on this subject, Zackiva Communications Corp. v. Milberg Weiss Bershad Specthrie & Lerach [223 A.D.2d 417 (1st Dept.), lv. denied, 88 N.Y.2d 802 (1996)]. The Zackiva decision had allowed former clients access only to the “end product” of an attorney’s services (e.g., pleadings actually filed, letters actually sent), but not to the attorney’s “work product” (e.g., drafts, internal memoranda, mark-ups, research, and “other internal documents containing the opinions, reflections and thought processes” of the law firm), except upon a showing of “particularized need.”
The Court of Appeals noted that Zackiva represented a minority approach. The Court preferred the majority view, that a client has “presumptive access to the attorney’s entire file on the represented matter,” unless the client’s former law firm makes a “substantial showing … of good cause to refuse client access However, a law firm “should not be required to disclose documents which might violate a duty of nondisclosure owed to a third party,” or “firm documents intended for internal law office review and use,” such as “documents containing a firm attorneys’ general or other assessment of the client, or tentative preliminary impressions of the legal or factual issues presented in the representation, recorded primarily for the purpose of giving internal direction to facilitate performance of the legal services…”
The Court noted that a law firm may apply to the Supreme Court for “protective remedies in the event of oppression or harassment in connection with demands for file inspection, delivery of original documents or reproduction.” “As a general proposition,” the Court said that the client, not the law firm, must pay to assemble and deliver the documents.
Roy Simon is a Professor of Law at Hofstra University School of Law and Director of Hofstra’s Institute for the Study of Legal Ethics. He is the author Simon’s New York Code of Professional Responsibility Annotated, published annually by West.
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