Upon the termination or conclusion of an attorney-client relationship, a client may request delivery of his or her file. But what exactly is included in the “client’s file”?
While there is no definitive answer to this question, the Georgia State Bar has provided some guidance. Examples of clients papers are “Anything which the client gives to the attorney to use or consider in the representation; Evidence, including demonstrative evidence, photographs, statements of witnesses, affidavits, deposition and hearing transcripts, exhibits and physical evidence; Expert evidence, including tests, opinions and reports; Agreements, contracts, instruments, notes and other documents used or to be used in transactions of any kind; Corporate records, minute books and records of organizations; Wills, trusts and other estate planning documents; and Legal memoranda and analyses.” Other jurisdictions have concluded that client files include those stored in electronic or digital format. See, e.g., N.H. Bar Ass’n Ethics Comm., Op. 2005-06/3 (2006).
What about work product?
Generally, a lawyer may not refuse to hand over client files on the basis of the work product doctrine. The “work product doctrine does not apply to the situation in which a client seeks access to documents or other tangible things created or amassed by his attorney during the course of the representation.” Swift, Currie, McGhee & Hiers v. Henry , 276 Ga. 571, 573 (2003)(reasoning that client, not attorney, is true owner of client’s file). However, some documents may be considered personal attorney-work product and not client papers or property. For example, conflicts checks, personnel assignments, lawyer notes reflecting personal impressions and comments relating to the representation. See, e.g., Colo. Formal Op. 104 (1999).