Who Owns Notes and Reports

The client was incarcerated for maiming his former wife with a knife. His lawyer was appealing a general court martial conviction for several offenses, including this battery.

The lawyer sent paralegal investigators to the former wife's work place to obtain evidence that she defrauded the court as to the extent of her injuries. The client requested that his lawyer turn over copies of the paralegal's reports and other investigative material.

The lawyer had a good faith concern that the client would use the lawyer's investigative materials to find his former wife and inflict further serious injuries upon her. Does the lawyer have an obligation to provide or disclose such investigative materials to his client?

That was the question posed to the Committee on Professional Conduct of the Illinois State Bar Association (Opinion No. 94-13). It's actually part of a bigger issue of whether an attorney is required to turn over notes, memoranda, drafts, research materials and other investigative materials prepared by or for the lawyer for the use of the lawyer in the representation of the client.

The issue has courts and ethics panels across the country divided. Although the issue apparently hasn't been considered by an Illinois court, the ISBA answered the hypothetical under the Illinois Rules of Professional Conduct, Rules 1.4 and 1.15.

After dividing the various aspects of a client's file into categories of documents, the panel easily found that some materials are discoverable by the client, such as pleadings and pertinent correspondence. But the ethics panel in Illinois ruled that the category involving a lawyer's notes and factual or legal research materials are the property of the lawyer and, therefore, the client is not entitled to them.

When a retaining lien is not at issue, the ISBA committee found that "the client is paying for the end result that does not include the tools used by the lawyer to reach the result." Documents such as "the lawyer's personal research, drafts and notes of interviews, which reflect the candid, rough, and blemished private thoughts of the lawyers are the tools of the lawyer's trade to which the client has no entitlement."

Alabama, Arizona, North Carolina and Montana are among the states that have found these items constitute an attorney's work product and, thus, do not have to be turned over to the client. American Bar Association Informal Opinion 1376 (issued Feb. 18, 1977) is consistent with this approach.

But New York's highest court disagrees, as enunciated recently in Sage Realty Corp. V. Proskauer Rose Goetz & Mendelsohn, 91 N.Y.2d 30, 689 N.E.2d 879 (1977). About 10 jurisdictions, including California, Massachusetts, Michigan, Pennsylvania and Texas, focus on the fiduciary nature of the attorney-client relationship and require the lawyer to surrender the entire file upon request.

In the Sage Realty case, Melvyn Kaufman, a real estate developer, was embroiled in a complicated, high-stakes refinancing case in New York. After paying $2 million in legal fees to a high-powered New York law firm, he decided to switch to another firm.

Kaufman asked that the entire file be given him - including attorneys' notes, research, internal memoranda and other documents containing reflections and thoughts. The firm, Proskauer Rose, refused, contending it owned the file.

Although the trial court sided with the law firm, holding that such "reflections and thought processes of counsel were Proskauer's private property, which need not be furnished to [clients] absent a showing of particularized need," late last year the state's highest court reversed that holding and said that "no principled basis upon which exclusive property rights to an attorney's work product in a client's file spring into being at the conclusion of a represented matter."

The court held that a former client has a right to the work product from completed legal matters except where the disclosure would violate the attorney's duty of confidentiality owed to a third party or otherwise imposed by law. The court went on to say that clients should not have to prove their need for a particular document but, instead, lawyers have to prove the clients don't need it.

In considering the theory as well as the practicalities of the matter, the sounder policy is that adopted by Illinois and the states that allow an attorney to retain these critical documents when the circumstances, as in that case, deem it appropriate.

All jurisdictions appear to agree that other considerations must be analyzed on a case-by-case basisllegations of attorney misconduct or malpractice, fee disputes between the lawyer and client, a discharged law firm's retention of information that may have been verbalized by witnesses or experts and then recorded in memoranda that are part of an issue still under dispute - just some examples in which information should be disclosed to the former client because it may be essential to the completion of a matter at hand.

Nonetheless, if every file of a law firm would have to be maintained with an eye that some day every piece of paper may become the property of the client, imagine the time and effort of a litigator spent on the mere internal condition and upkeep of the records - not directly related to the case itself.

The cost could be enormous in the lawyer's maintaining the file to such a level of scrutiny, particularly when the client - in possession of those materials - would have the advantage of 20/20 hindsight. Already a certain amount of note keeping and memoranda are required for purposes of the lawsuit itself, but the additional burden of detailing one's thought processes would turn litigators into mere scriveners.

The real purpose of the profession is to provide competent legal services, but an important caveat is that it should be at a reasonable price that makes it affordable. Decisions like that involving the Proskauer firm force legal services to become much more unattainable while making lawyers much more unproductive.

In essence, every file would be conducted in public. Nearly every thought of the lawyer on a case would have to be written down to be preserved in the file, with the goal of achieving perfection.

The real problem, however, is that an attorney would no longer be allowed to do his or her job of lawyering. Instead, the ability to write a "CYA" memo would become the most coveted and highly regarded skill - a tragedy for a group calling itself members of a profession.