CBA Record

T 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 31