Who Owns the Files a Lawyer Generates While Representing a Client?

December 11, 2002

Determining ownership of a lawyer’s files requires both an ethics and a property law assessment. Some states (such as Virginia) have specific ethics rules addressing this issue, but many states do not.

In Henry v. Swift, Currie, McGhee & Hires, LLP, 254 Ga. App. 817, 819-820 (2002), the court explained that states usually recognize one of two standards: (1) the “entire file” standard (under which the client owns all or nearly all of the file) or; (2) the “end product” standard (which allows the lawyer to withhold internal documents that the court explained “are characterized by candor and may contain the attorney’s mental impressions, opinions and legal theories”). The court indicated that Georgia had not decided which approach to follow.

Lawyers should know in advance how their state analyzes the ownership of their clients’ files—especially if the lawyers are prone to prepare materials that are critical of their clients or themselves. Their state’s law might force the lawyers to turn over such embarrassing or damaging documents to angry former clients.