Give Me the Darn File!

About a month ago a man hired me to replace his previous lawyer (someone who advertises extensively on the Web) on his felony (this actually happens fairly often — not everyone gets the “hiring a criminal-defense lawyer” thing right the first time). I drew up a motion to substitute counsel, got the client’s signature on it, and sent it to the former lawyer along with a letter requesting that he sign the motion and return it to me along with the client’s entire file “so that I [could] continue my trial preparation from where [he] left off.”

He signed the motion and returned it to me within four days, but did not send me his file. I called and talked to him, and he promised to send me the file, but still did not do so. I called him again, and he promised it on a specific day. That day has come and gone, trial is coming up quickly, and I still have no way of knowing what work, if any, the previous lawyer did (operating under the assumption that the answer is “none,” I’m doing everything that should have been done by him six months ago). I have asked the previous lawyer several more times for the file and had no further response.

Here’s the rule in Texas, according to Ethics Opinion 570:

Under the Texas Disciplinary Rules of Professional Conduct, a lawyer must upon request provide to a former client the notes of the lawyer from the lawyer’s file for that former client except when the lawyer has the right to withhold the notes pursuant to a legal right such as a lawyer’s lien, when the lawyer is required to withhold the lawyer’s notes (or portions thereof) by court order, or when not withholding the notes (or portions thereof) would violate a duty owed to a third person or risk causing serious harm to the client.

The previous lawyer has no lien on the file (even if he did, Texas Disciplinary Rule 1.15(d) would require him to return the file since retaining it prejudices the client); there is no court order requiring him to withhold portions of his notes; and he has no duties to any third parties with respect to anything that could conceivably be in the client’s file. So why isn’t the file on my desk?

What would you do?

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0 responses to “Give Me the Darn File!”

  1. File for a continuance. Raise every Sixth Amendment problem this lawyer’s representation has caused; preserve for appeal.

  2. I would make my own notes, since this previous counsel is obviously inept – I would be just as inept for relying on his notes. Possession is 9/10ths after all, so if let him keep them…, don’t ask me what I think about the disciplinary rules – they have no place in the law – pure politics.

  3. I might add what I do….I send the client after the file, I instruct them to fetch the file and whatever refunds he/she can get from their former counsel to me. Be patient, take Matt’s advice, use it to buy time if you must, but really it should not be that difficult. p.s. that rule does not apply to you, unless you are “the client”. The client has the property interest in the file that the courts recognize.

  4. Mark,

    Thanks for the comments. You’re right — I shouldn’t rely on his notes — but he obtained medical records on the client that I may not be able to get before trial.

    The prior lawyer has been unresponsive to the client’s requests for the file and, indeed, to all attempts by the client to contact him . . . which may have something to do with why I was hired.

    I think a lawyer is on thin ice if he doesn’t return the client’s file to the client via the client’s new counsel on request. You’re not suggesting that my request doesn’t obligate the lawyer to return the file?

  5. It is inexcusable. When I represent clients in habeas corpus petitions, I run into this problem very frequently.

    We don’t need a motion here; simply a copy of an appearance and a release from the client. Despite that, it sometimes takes predecessor counsel upwards of a year to hand over the file. A YEAR!

    Then, you should see some of the things that pass for “files”.

  6. I have had some luck with asking the court to order a former attorney to turn over a file to me. Then there is, at least, a threat of contempt. Usually, a lawyer doesn’t want to make the court angry. However, the court may not have the authority to actually order a non-party to do anything. My argument is that the court has the right to govern the practice of attorneys before it. Fortunately, I have never had to go any further than getting the order.

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