Academic journal article Defense Counsel Journal

Discharged Lawyers Must Give Files to Client

Academic journal article Defense Counsel Journal

Discharged Lawyers Must Give Files to Client

Article excerpt

Adopting what it found to be the majority rule and that embodied in Section 58 of the new Restatement (Third) of the Law Governing Lawyers, the New York Court of Appeals held that former clients must be accorded access to "inspect and copy documents possessed by the lawyer relating to the representation unless substantial grounds exist to refuse." Moreover, the court added, even without a request, an attorney is obliged to deliver to the client, not later than promptly after the representation ends, "such originals and copies of other documents possessed by the lawyer relating to the representation as the ... former client needs."

The case arose when Sage Realty Corp. attempted to obtain from its former attorneys-Proskauer Rose Goetz & Mendelsohn LLP-the firm's files in their entirety regarding a complex mortgage financing and ownership restructuring in which the firm had represented Sage. All fees had been paid, and Sage tendered a check for the firm's bindery expenses. Proskauer Rose delivered quite a few documents, but it refused to turn over a large number of items identified in an index it furnished as internal legal memoranda, drafts of instruments, markups, notes on contracts and transactions, and ownership structure charts. It expressed a willingness to entertain a particularized request on Sage's showing a need.

Proskauer Rose's position was upheld by the trial court and the intermediate appellate court on the ground that the withheld documents were the firm's "private property" that didn't need to be delivered absent a showing of a particularized need. …

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