Thursday, April 9, 2009
In an appeal from a reprimand imposed by the Professional Conduct Board, the Arkansas Supreme Court rejected the attorney's argument that he had not violated Rule 1.16(d) by declining to return a client's file on request of the former client's new lawyer. The lawyer had asserted a number of justifications for the retention, including that the issue was governed by his "office policy." The court makes it clear that whatever policy he had must give way to the dictates of the Rule.
The court noted some differing views as to the extent of the duty to return client files. One approach is that the client gets the entire file; another is that the client gets only the end product. Because the attorney gave back neither the entire file or the end product, the distinction "is not essential for the resolution of the instant case...we commend the two approaches to our Professional Conduct Committee for its evaluation and study, looking toward the desirability of adopting either approach as a comment to [the Rule]." (Mike Frisch)