Friday, February 19, 2021

iPods And Client Files

The Vermont Supreme Court affirmed in part and reversed in part summary judgment granted to an attorney sued by his former client in a criminal matter for conversion of the client file 

We agree with the majority approach as set forth in the Restatement, and conclude that a client’s entire file, with narrow exceptions as identified in § 46, belongs to the client and upon request, should be turned over to the client upon termination of representation. This approach is consistent with an attorney’s ethical obligation of open communication with the client. See Sage Realty Corp., 689 N.E.2d at 882 (“Among the duties of an attorney as a fiduciary and agent of the client are those of openness and conscientious disclosure.”); V.R.Pr.C. 1.4(a) (requiring lawyer to keep client reasonably informed and to promptly comply with reasonable requests for information). Accordingly, we reject attorney’s claim that he was only obligated to provide client an opportunity to inspect and copy the file. Under the Restatement approach and the majority rule, where a client so requests, an attorney is obligated to turn over the contents of the file to the client promptly upon termination of representation, unless substantial grounds exist to refuse the request.

The court approved the attorney's agreement with the prosecutor to withhold sharing Jencks Act statements with his client in exchange for early review of those materials

Attorney’s agreement with the USAO was a tactical decision that fell within attorney’s authority to manage the conduct of the trial, and therefore did not require approval by client.

The client had filed a bar complaint

Client filed a complaint with the Office of Disciplinary Counsel in September 2015, alleging that attorney committed unprofessional conduct because he did not provide client with paper and electronic copies of documents he received as discovery from the USAO. Bar counsel determined that attorney did provide client with a copy of the file and that the Rules of Professional Conduct did not require him to provide another copy. Bar counsel noted that attorney had informed client that he would make the file available for inspection by anyone authorized by client and suggested that client accept the offer. Bar counsel closed the complaint and did not refer it for disciplinary action.


In December 2018, client filed this action in the civil division of the superior court alleging that attorney had converted his files. He sought an order declaring that he was the owner of the files and directing attorney to turn over all files related to his representation. Attorney moved for summary judgment, arguing that it was undisputed that attorney had already provided client with copies of everything that he was allowed to disclose. Client denied that he had been provided with copies of everything, asserting that attorney had never provided him with trial exhibits. He also argued that he was entitled to the paper copy of the discovery file that attorney allegedly created for use at trial, the Jencks material, and the iPod on which attorney had stored the audio recordings.

The trial court concluded that attorney had complied with his obligation to allow client to copy and inspect his files relating to client. It held that attorney had substantial grounds to refuse to produce copies of the Jencks material because of his agreement with the USAO. The trial court held that client was not entitled to attorney’s original files or the iPod. It therefore granted summary judgment to attorney. 


We hold that client owns the entire contents of the file, subject to certain exceptions. We agree with the trial court that attorney had substantial grounds to refuse to disclose the Jencks materials to client and that client has failed to demonstrate an ownership interest in the iPod. However, we conclude that summary judgment was premature regarding two issues: whether client was entitled to a paper copy of the discovery file that attorney allegedly created for use at trial, and whether client has been provided with certain trial exhibits. We therefore reverse and remand for further proceedings on those issues.

The contested issue is whether the trial exhibits were provided.

As to the iPod

Client next asserts that he owns the iPod that attorney purchased so that client could listen to recordings of wiretapped calls, because it was part of his file and attorney was reimbursed by the court for purchasing it. Client has not pointed to any evidence or legal authority to support his claim that he owns the device itself when it was paid for by the court. Client conceded at oral argument that attorney subsequently provided him with copies of the wiretapped call recordings that were contained on the iPod on another digital device. We therefore agree with the trial court that attorney is entitled to summary judgment on this claim.

That point drew a dissent from Justice Robinson who opined that

this is precisely the kind of case that would have been better resolved through Vermont’s Professional Responsibility Program than a civil suit for conversion...

With respect to the iPod, it is clear that client is entitled to the digital files in digital format if that is his expressed need. The Court today holds that the client owns the file, and at the conclusion of the representation, upon request, the attorney must generally provide the file to the client in the format in which it was kept unless the client agrees otherwise. This logic supports client’s position that he is entitled to the recordings in digital format; and my understanding is that client has received those digital files on a thumb drive. The majority’s holding doesn’t resolve the question whether client owns and is entitled to the device in which the attorney stored those digital files.

The iPod serves two purposes: It is the vessel in which the digital files are stored, and it is the tool through which they are accessed. Insofar as it serves as a vessel for storing the digital files, it is analogous to a file cabinet in which an attorney stores a client’s paper file. It is generally owned by the attorney or law firm, and is dedicated to storing a client’s files for a period of time. In that scenario, the client owns the files, but not the file cabinet. But what if the lawyer purchases the file cabinet specifically for the purpose of storing the client’s files, attorney bills client for the cabinet, and client pays for it? In that circumstance, doesn’t the client who paid for the file cabinet own it? It would be counterintuitive to allow the attorney to keep the file cabinet the attorney’s own use in the face of a direct request from the client who paid for the cabinet. Likewise, with the iPod.

Its status as a tool through which the files are accessed is even more significant. An attorney may deliver digital files to a client on a thumb drive, but without the iPod or some  other tool for playing the digital files, a client cannot actually access the files. If a lawyer returns the client’s file, but retains the iPod, the client doesn’t have the benefit of the complete file but instead has to acquire or otherwise access a device to actually listen to the digital files. The case for including the iPod as part of the client’s file is even stronger than the case for including the filing cabinet.

The fact that client did not personally pay for the iPod in this case shouldn’t change the analysis. It’s true that client didn’t personally pay for the iPod; but neither did attorney. In the context of paying attorney’s legal bills on behalf of client, the court bought the iPod. But the court paid attorney for client’s benefit, not for counsel’s benefit. It purchased the iPod specifically to facilitate attorney’s representation and this client. For that reason, as between client and attorney, it strikes me that client’s claim to ownership of the iPod is superior to attorney’s. Why shouldn’t client get the digital files stored on a device from which client can directly review them, rather than requiring client to accept a thumb drive, forcing him to subsequently find access to a device that can play the digital recordings from the thumb drive? (Attorney is, of course, free to keep copies of the digital files on a thumb drive.) Moreover, differential treatment of criminal defendants who rely on government-funded counsel to defend them runs afoul of the purpose of the federal Criminal Justice Act.

(Mike Frisch)

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