Is it Unethical for my Former Tennessee Attorney to Withhold my File from the New Attorney, Even if it Will Harm My Case?

In short, the answer is yes—of course!  But there is more to the answer than that.  The attorney-client relationship is one that has been fostered since the dawn of modern times and has many considerations.  Recently, these considerations—of trust, respect, and diligence—have been codified, or written down, in many state’s laws, rules, and regulations.  Tennessee is no exception.

Anytime there is an attorney-client relationship, there are certain obligations and rules that both the attorney and the client must follow.  For instance, the attorney has certain communication obligations he or she must oblige by, such as forwarding information of settlement offers or plea agreements.  In turn, the client’s most obvious obligation is to pay the fees associated with the representation on time and not willfully neglect to pay.

When the obligations in the attorney-client relationship are not met, the bond holding that relationship together may be broken in several different ways.  But this is not an even “break.”  The client has the unfettered ability to terminate the attorney-client relationship, with or without cause, as he or she sees fit.  After all, the client is the arbiter of their own case for these macro decisions.

On the other hand, an attorney’s ability to withdraw from a matter is considerably more complex and more difficult to do so.  Under the Tennessee Rules of Professional Responsibility, Rule 1.16 governs mandatory and voluntary withdrawals of attorneys.  There are certain conditions that warrant an immediate and unconditional withdrawal, such as a conflict of interests, whereas other conditions provide for a voluntarily withdrawal, such as the client willfully failing to pay bills.

However, no matter who is terminating the relationship, the attorney still must follow some basic rules.  This may be hard for a lawyer who feels he or she was unjustly terminated from a matter, particularly if that attorney took the matter on a contingent basis.  Meaning the lawyer only would get paid for his or her work if he or she won the case.  Thus, if the matter had been going on for two years without resolve, and the client terminated the representation, the client would not have been paid for two years worth of work.

This does not mean that the former lawyer can hold the client’s file hostage though.  While there are certain liens that the former lawyer can get on the file, such as requiring the new lawyer to pay for the file’s disbursements (costs of making such as filing fees, copying fees, stenographer fees, etc) or to recover a percentage of the winning (such as 11% of the final verdict or settlement to pay for the former lawyer’s time), the former lawyer must still transfer over the file.  As Tennessee legal malpractice attorneys, we have seen terminated attorneys withhold valuable parts of their former client’s file in a method that is unethical and a violation of state law, rules, and regulations.

Under Rule 1.16(d), a lawyer who is discharged by a client or withdraws from the representation must continue to protect the client’s interests which include “promptly surrendering papers and property to which the client is entitled and any work product prepared by the lawyer for the client and for which the lawyer has been compensated,” and to also “promptly surrendering any other work product prepared by the lawyer for the client.”  If there has been a retainer paid by the client, essentially a down payment on the representation, the lawyer must also “promptly refund any advance payment of fees that have not been earned or expenses that have not been incurred.”

It should be noted that a lawyer may withhold the file, so long as it does not have a “materially adverse effect” on the client.  While there is certainly room provided for a lawyer to retain the file, if major landmarks in the case are approaching—such as a motion, depositions, or trial—any retention of the file at that point will surely create ethical violations.

There are many different types of legal malpractice claims to be aware of.  Here at Bailey and Greer, PLLC our Tennessee legal malpractice attorneys understand how to effectively pursue your claims.  Our legal team has a proven track record of compassionately representing our clients harmed by unethical legal representation, which is included in our testimonials page and our successful case results.  Please contact us today to receive your free case evaluation by dialing 901-680-9777.