Represented a client in a Collaborative Law case. His entire professional team has done their best. However, at the end of the day, the parties have decided in good faith that they are no longer willing to negotiate and need a tribunal to provide clarity. Your client pays you in full, but then asks you for a copy of your files. What documents do you need to deliver? Do they include the discussion of the rights and obligations of the parties that you prepared for an offline conversation with the other attorney? Doesn’t it seem inconsistent with the whole notion of a collaborative process to deliver a roadmap for a lawsuit to the next professional in line? You are especially aware of Standard 5.5 of the International Academy of Collaborative Professionals Ethical Standards for Collaborative Professionals, which asks you to avoid contributing to client conflict.

There are two novelties to guide us. On July 1, 2015, the Standing Committee on Ethics and Professional Responsibility of the American Bar Association issued Formal Opinion 471, “Ethical Obligations of the Attorney to Deliver the Documents and Property to which the Former Attorney is Entitled “. On the same day, a new version of the Massachusetts Rules of Professional Conduct went into effect, preserving a deviation from the ABA Model Rules.

The ABA opinion notes that there are two lines of cases, the most common “full record approach”, whereby an attorney must deliver the entire record with only a few commonly recognized exceptions, and the “end product approach”, in which a client is entitled to the final product of a lawyer’s work, but not necessarily to all the documents leading to it. The opinion then explores some of the nuances of these definitions. For example, documents often do not need to be disclosed under the full file approach if disclosure would violate a duty to a third party, such as private attorney form files used in document drafting.

Massachusetts follows a version of the minority rule, the end product approach, which is incorporated directly into the text of the Commonwealth Rules variation. Rule 1.16 (e) is a holdover from the previous Code of Professional Conduct. It states that an attorney must deliver the following to a client at the end of the representation:

“(1) all papers, documents, and other materials that the client provided to the attorney. The attorney may, at his own expense, retain copies of such materials.

“(2) all pleadings and other documents presented to or by the court or delivered by or to any party. Client may be required to pay any copy fee consistent with attorney’s actual cost for these materials, unless client you have already paid for such materials.

“(3) all investigative or discovery documents, except those for which the customer is obligated to pay under the rate agreement but has not paid, including but not limited to medical records, photographs, tapes, disks, reports of investigation, expert reports, statements, and supporting evidence The attorney may, at his own expense, retain copies of such materials.

“(4) if the attorney and the client have not entered into a contingent fee agreement, the client is only entitled to the portion of the attorney’s work product (as defined in subparagraph (6) below) for which the customer has paid.

“(5) If attorney and client have entered into a contingent fee agreement, attorney must provide copies of attorney’s work product (as defined in subparagraph (6) below). Client may be required to pay any copying charges consistent with the attorney’s actual cost for copying these materials.

“(6) For the purposes of this paragraph (e), the work product shall consist of documents and tangible things prepared in the course of the representation of the client by the attorney or under the direction of the attorney by his employee, agent, or consultant. , and is not described in paragraphs (2) or (3) above. Examples of work products include, but are not limited to, legal investigation, witness interview records, negotiation reports, and correspondence.

“(7) Notwithstanding any provision to the contrary in this paragraph (e), an attorney may not refuse, for non-payment, to make available materials in the client’s file when the retention would unfairly harm the client.”

In other words, if the client has paid for “work product” in a Collaborative matter, the attorney must deliver it. However, while the definition of “work product” broadly includes “documents and other tangible things” produced by the attorney in the course of representation, the examples include only items of the final product. What does this mean? You must turn around:

-A written analysis that you have prepared at the request of the client, whether you have previously sent it to the client or not; and

-Legal investigation that you have carried out as part of your analysis

The Massachusetts rules do not specifically address an attorney’s personal notes, drafts, or internal memoranda, although the Opinion notes that other such items do not need to be disclosed in other jurisdictions that follow the end product rule. It is unclear what line of reasoning the Supreme Judicial Court would follow. In the absence of a specific address, the best approach may be to be careful – carefully consider what you put in writing, as you may need to deliver it to the successor attorney.