who owns the rights to a case file?

[anwiii]

i live in johnson county missouri and hired an ssi lawyer about 1 1/2 years ago. his fee was based on my backpay awarded if he won the case. if we lost(which we did), i pay nothing. i don't owe the attorney anything and he is no longer my attorney on this case. i am thinking about applying for ssi again and found another lawyer who i hope will do a better job in handling my case here.

i went in personally to request my case file but the lawyer refused to give it to me. he said he needed it for his own records(that didn't make sense really since he's not even handling the case anymore and the case is closed) but could make me copies of the entire case file and charge me for it. i asked him how much and he said he would get back to me with a price after he has gone through the case file.

at first i thought nothing of it thinking courts and hospitals etc. charges for copied documents, but then i figured that this is someone i hired to represent me and keep all relevant materials to my case such as the stuff i handed over to him personally, medical records which were mailed to him, and information that social security sent to him.....all on my behalf. i don't see any personal interest that he should have in my case file so i don't know why he wants to charge me for copies.

so my question is, who has the rights to the contents of the case file? is he allowed to charge me? if so, how much? if not, what are my options if he doesn't want to hand it over? do i have the rights to the original or copied contents?

thanks in advance to whoever can help me determine my rights to the case file in the state of missouri! i researched this before i posted and only found issues like this in other states. the gereral consensus though is what i had thought. a client has the rights to the case file(usually the original) unless the client owes the attorney and the attorney hasn't been paid in full. there were exceptions, but i want to know specifically in the state of missouri before i talk to my attorney again soon.

 

[Zigner]

Yes, he can charge you for copies of HIS paperwork (it's not yours.)

 

[anwiii]

Yes, he can charge you for copies of HIS paperwork (it's not yours.)

so let me get this straight. in the state of missouri, my medical records, the paperwork and disk i handed over to him, and all other documents sent to him on my behalf is his?

i just want to be clear on this since i gave a pretty detailed scenario and was issued a one sentence response and wasn't given a reason why he has full rights to to the file. if this is true, then can he deny me copies as well since you're stating it's his?

 

[Mass_Shyster]

Yes, he can charge you for copies of HIS paperwork (it's not yours.)

I don't know if that is true. (I know it's not in Mass).

The Missouri Rules of Professional Conduct state:

A lawyer shall securely store a client’s file for 10 years after completion or termination of the representation absent other arrangements between the lawyer and client. If the client does not request the file within 10 years after completion or termination of the representation, the file shall be deemed abandoned by the client and may be destroyed.

How could it be deemed abandoned by the client if it is the property of the attorney?

 

[Zigner]

so let me get this straight. in the state of missouri, my medical records, the paperwork and disk i handed over to him, and all other documents sent to him on my behalf is his?

i just want to be clear on this since i gave a pretty detailed scenario and was issued a one sentence response and wasn't given a reason why he has full rights to to the file. if this is true, then can he deny me copies as well since you're stating it's his?

Oh, you mean the stuff that you turned over to him (ie: GAVE him) - yes, they're his. I'm NOT saying that he can deny you copies (I wasn't even addressing that and, honestly, I don't know.) All I am pointing out is that he is allowed to charge you for copies of HIS records.

 

[tranquility]

Oh, you mean the stuff that you turned over to him (ie: GAVE him) - yes, they're his.

No, they're not. There was nothing "given" in the sense there was a gift of the item to the attorney, but given in the sense of being handed over to him. This is the OP's legal representative and not some guy on the street.

(http://www.msbar.org/ethic_opinions.php?id=405)

IV. Client's File

The ownership of the specific items contained in a file is a matter of law. Informal Opinion ABA No. 790 (Oct. 26, 1964). The client's file consists of the papers and property delivered by the client or which the client caused to be delivered to the lawyer. DR9-102(b) (4). In addition, the "end product", or in other words, what the lawyer was hired to do, is usually also considered to belong to the client. Wisconsin Bar Bulletin, June 1970 Supplement (Memo Opinion 4-78). On the other hand, the notes and memorandums are usually considered to belong to the lawyer and be his work product. Missouri Bar Bulletin, May 1978, Informal Opinion (Jan. 6, 1978). Contrary opinions can be found which indicate the client has no absolute right to the files. Maryland Opinions Informal Opinion 76-50 (March 1, 1976). This committee concludes that the better-reasoned opinions generally recognize that to the extent the client has a right to his file, then his file consists of the papers and property delivered by him to the lawyer, the pleadings or other end product developed by the lawyer, the correspondence engaged in by the lawyer for the benefit of the client, and the investigative reports which have been paid for by the client. San Diego Bar Association, 25 Dicta, May 1978 (Opinion 1977-3). However, the lawyer's work product is generally not considered the property of the client, and the lawyer has no ethical obligation to deliver his work product.

Info edit:
See also:
http://members.mobar.org/lpmonline/holdthephoneaboutfiles.html

Lawyers customarily think of the files in their offices as their files. However, in its Formal Opinion 115, binding on all Missouri attorneys, the Missouri Supreme Court's Advisory Committee concluded that under the Missouri Rules of Professional Conduct, the file belongs to the client from "cover to cover."



This includes documents brought to the attorney by the client or the client's agents, pleadings pertinent to the case, depositions or other discovery documents pertinent to the case that the client was billed and has paid for, and "work product" (i.e. notes in the file consisting of attorney's impressions about the case and notes containing comments and thoughts made during phone conversations with the client; Informal Opinion 980141).



Formal Opinion 115 states that Missouri does not recognize the common law retaining lien. Therefore, if a client owes an outstanding fee and requests the file from the lawyer, the lawyer cannot hold the file in order to force the client to pay the fee. However, those items for which the attorney has borne out-of-pocket expenses, such as transcripts, may be retained until the client pays for them. While Formal Opinion 115 does not mention it, the ability of a lawyer to ethically withhold such items may depend on whether there is an agreement between the lawyer and the client that the client will be responsible for paying for such items.



If the lawyer chooses to keep a copy of the file, the lawyer may copy file at the lawyer's expense.

 

[Zigner]

I stand corrected.

 

[anwiii]

A lawyer shall securely store a client’s file for 10 years after completion or termination of the representation absent other arrangements between the lawyer and client. If the client does not request the file within 10 years after completion or termination of the representation, the file shall be deemed abandoned by the client and may be destroyed.

interesting. thank you. so from this, if i am reading it right, the client has the right to the file if it hasn't been destroyed after 10 years. it doesn't indicate when the client has the right to the file within those 10 years though or if a lawyer is required to hold on to a file for a given length of time after completion or termination of the representation.

so i am curious how others would interpret this to mean? can i walk in and request the file be handed over to me without charge or would there be something that would limit this action in my case?

 

[anwiii]

Lawyers customarily think of the files in their offices as their files. However, in its Formal Opinion 115, binding on all Missouri attorneys, the Missouri Supreme Court's Advisory Committee concluded that under the Missouri Rules of Professional Conduct, the file belongs to the client from "cover to cover."



This includes documents brought to the attorney by the client or the client's agents, pleadings pertinent to the case, depositions or other discovery documents pertinent to the case that the client was billed and has paid for, and "work product" (i.e. notes in the file consisting of attorney's impressions about the case and notes containing comments and thoughts made during phone conversations with the client; Informal Opinion 980141).



Formal Opinion 115 states that Missouri does not recognize the common law retaining lien. Therefore, if a client owes an outstanding fee and requests the file from the lawyer, the lawyer cannot hold the file in order to force the client to pay the fee. However, those items for which the attorney has borne out-of-pocket expenses, such as transcripts, may be retained until the client pays for them. While Formal Opinion 115 does not mention it, the ability of a lawyer to ethically withhold such items may depend on whether there is an agreement between the lawyer and the client that the client will be responsible for paying for such items.



If the lawyer chooses to keep a copy of the file, the lawyer may copy file at the lawyer's expense.

wow. thank you for that tranquility. that's exactly the information i was trying to search for myself but couldn't find it. this seems pretty cut and dry in regards to who has actual ownership. from this information alone, can i assume now that i can just walk in and request my file and allow him to refer to formal opinion 115?

 

[ecmst12]

I would suggest a written request via certified mail. Cite the code mentioned above. Paper trail.

 

[You Are Guilty]

I would suggest a written request via certified mail. Cite the code mentioned above. Paper trail.

At the bare minimum. Call me a pessimist, but I have never, ever, given a client a hard time about getting a copy of their file. My experience (admittedly anecdotal), is that the main reason this occurs is because there is something in the file the attorney does not want the client to know about.

Assuming that is the case here, you will definitely want a written request, since the next step, if the attorney does not comply, will be to file a formal complaint:
http://www.mochiefcounsel.org/ocdc.htm?id=9&cat=2

Once you do, they will ask for proof that you requested your file, which you will now have.

Good luck.

 

[ecmst12]

The way I figure it, the lawyer already KNOWS the law and knows that the client is entitled to the file. But if OP tells him that HE also knows the law, that might be the push that the lawyer needs to comply with the request before he gets reported.