CBA Record April

he Illinois State Bar Association issued Advisory Opinion

on Professional Conduct No. 94-13 (the ISBA Opinion),

stating that when a client in Illinois requests its file, the

lawyer is required to turn over the “end product,” but not the

“entire file.”The “end product” approach is the so-called “minority

approach.” The ISBA Opinion was addressed in an article in the

November 2013

CBA Record

authored by the writer’s law firm

(Shelby L. Drury and Timothy J. Miller,

Ownership and Control

of Lawyers’ Files Relating to Representation,

CBA Record,

38-41).

More recently, the American Bar Association’s Committee on

Ethics and Professional Responsibility issued Formal Opinion 471

on July 1, 2015 (the ABA Opinion), in which it concluded that

the “end product” approach is consistent with the ethical require-

ments of the ABA Model Rules of Professional Conduct. The

pertinent Illinois and ABA ethics rules are the same (Illinois and

ABA Rules of Professional Conduct 1.4(a), 1.15(d), 1.16(d)). The

ABA Opinion cited the ISBA Opinion, among other authorities.

“End Product” Approach

The “end product” or “end results” approach requires a lawyer to

turn over to a client or former client:

• Documents and other materials the client gave the lawyer;

• Correspondence between the lawyer and the client and between

the lawyer and third parties;

• Copies of pleadings, briefs, applications and other documents

prepared by the lawyer and filed with courts or other agencies

on the client’s behalf; and

• Final copies of contracts, wills, corporate records and other

similar documents prepared by the lawyer for the client’s use.

However, a client or former client is not generally entitled to

receive:

•

Drafts

of pleadings, briefs, contracts, wills, corporate records

and other similar documents;

• Administrative materials relating to the representation such as

memoranda concerning potential conflicts of interest or the

client’s creditworthiness, time and expense records, or personnel

matters;

• The lawyer’s notes, drafts, internal memoranda, legal research,

and factual research materials, including investigative reports,

prepared by or for the lawyer for the use of the lawyer in the

representation.

The ABAOpinion notes that under the “end product” approach,

the client may also be entitled to “investigative reports and discov-

ery for which the client has paid.”

Exceptions to the End Product Approach

The ABA Opinion recognizes that in some circumstances a client

is entitled under the ethics rules to more than the end product, in

order to fulfill the lawyer’s ethical duty to protect a client’s interests.

In that regard, “when the representation is terminated before the

matter is concluded, protection of the client’s interest may require

the lawyer to provide the client with paper or property generated

by the lawyer for the lawyer’s own purpose.” For example, “if in a

continuing matter a filing deadline is imminent” and the lawyer

has begun drafting documents to meet the filing deadline but

the documents are not yet final, “then the most recent draft and

relevant supporting research should be provided” to the client.

Illinois Code of Civil Procedure’s Approach to Client Access

The Illinois Code of Civil Procedure (735 ILCS 5/8-2005) also

addresses the issue of client access to a lawyer’s file. The Illinois

Code section has never been cited in a reported case, but it is

generally consistent with the “end product” approach endorsed

by the ABA and ISBA. It provides:

Upon the request of a client [which “shall be in writing”],

an attorney shall permit the client’s authorized attorney

to examine and copy the records kept by the attorney in

connection with the representation of the client,

with the

exception of attorney work product.

(emphasis added.)

The ISBA Opinion notes that while its opinion concerns the

lawyer’s duty under the Rules of Professional Conduct, the lawyer’s

notes, factual and legal research material, and investigative materi-

als (which the lawyer need not provide the client) are the types of

materials that may be considered attorney “work product” in the

discovery context. That, however, was not relevant to the ISBA’s

inquiry.

The Illinois Code provides deadlines for attorney compliance

with a client’s request for its records and consequences for failure

to comply:

An attorney shall satisfy the requirements of this Section

within 60 days after he or she receives a request from a client

or his or her authorized attorney. An attorney who fails to

comply with the time requirement of this Section shall

be required to pay expenses and reasonable attorney’s fees

incurred in connection with any court-ordered enforcement

of the requirements of this Section.

Reproduction Expenses

The Illinois Code provides a mechanism for payment of the

expenses associated with reproducing the file for a client, requiring

CBA RECORD