To what extent are you entitled to get your file after you fire your lawyer?

In New York, the client is entitled to access to the whole of the file. The burden is on your attorney to rebut the presumption that you are entitled to your entire file, under the holding of New York’s highest court, the Court of Appeals, in Sage Realty Corp. v. Proskauer Rose, 91 N.Y.2d 30, 666 N.Y.S.2d 985 (1997).

There was always a consensus that the client was should be given the “end product” of the file (pleadings, correspondence with the clients and witnesses, the “final versions” of contracts, wills, and similar documents). However, the Court of Appeals rejects the distinction between “end product” and “work product”, lumps them together and gives the client access to both. By doing so, New York follows the majority rule followed in other states.

When a client fires a law firm, the firm must turn over the entire file to the client (assuming there are no claims of unpaid legal fees outstanding), including notes, internal memoranda and drafts, says the Court of Appeals. Before the decision in Sage Realty, lower courts in New York had held that the files were “private property” and that law firms only needed to turn over the “end product”. But the Court of Appeals disagreed. The Court of Appeals held that there was “no principled basis upon which exclusive property rights to an attorney’s work product in a client’s file spring into being” when the attorney-client relationship ends.

Where there is no claim of unpaid legal fees, the client is entitled to get the entire file, including “drafts, internal memoranda, mark-ups, research” and “other internal documents containing the opinions, reflections and thought processes” of counsel, as held by the Court of Appeals in Sage Realty. As stated by the Court of Appeals in its Sage Realty decision, “courts have refused to recognize a property right of the attorney in the file superior to that of the client.” Remember, you paid the lawyer for his/her work, so you should be entitled to get your entire file.

If you terminate your lawyer, you must insist that he/she give you access to your entire file.

What you can do if you have questions

If you have questions or want more information, I welcome your phone call on my toll-free cell at 1-866-889-6882 or you can send me an e-mail at jfisher@fishermalpracticelaw.com . You are always welcome to request a FREE copy of my book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com.