Who Keeps the Client File When a Lawyer Leaves a Firm?

When a lawyer departs a law firm, questions inevitably arise about client matters the lawyer handled while at the firm, particularly if the matters are ongoing or the clients are repeat customers.  Often, the client hired the firm for representation, but the firm assigned the lawyer--who is now leaving--to handle the client matter. If the representation is ongoing, or even if it is over – who gets to keep the client file? 

For starters, it is important to remember that the client file belongs to the client, not the firm or the departing lawyer. The “client file” consists of the documents, papers and other information received from a client or received or generated in the course of representing the client, including work product and notes.[1]  It is generally the rule that a lawyer who has represented a client may make copies of the client’s file, at the lawyer’s own expense, if the lawyer desires to maintain a copy of the file following the representation.

Therefore, if the departing lawyer authored or had access to documents during his or her personal representation[2] of a client, the lawyer is free to make and retain copies of those documents at his or her own expense.[3]  However, the lawyer must maintain confidentiality of the documents for as long as the documents exist in any form.  They cannot be shared with individuals at the new firm unless expressly authorized by the client or permitted under Rule 1.05.[4] 

It is not required that the departing lawyer obtain the prior law firm’s consent or even the client’s consent before making and retaining copies of the client’s documents “as long as the lawyer is reasonably responsive to the former client’s requests for copies of documents retained by the lawyer.”[5] 

What a departing lawyer may not do is take the law firm’s only tangible copy of the client’s files or delete the client’s files, documents, and data from the firm’s electronic database.[6]  This is the case even if the affected client chooses to follow the departing lawyer and authorizes the lawyer to do so.[7] A client has a right to demand its “original” file from its counsel or former counsel, but it cannot demand that a firm delete or destroy all of its copies of the client file and data.[8]  For this reason, a departing lawyer may not destroy the firm’s copies of the client file even if the client instructs the lawyer to do so.[9]  

In the end, both the firm and the departing lawyer have a right to make copies of the client file, at their own expense, regardless of whether the client stays with the firm or follows the departing lawyer to his or her new firm. 

[1] Tex. Comm. on Prof’l Ethics Op. 657 (2016).

[2] The Professional Ethics Committee has discussed the concept of “personal representation” in the context of conflicts of interest, noting that the term does not require that a lawyer served as counsel of record for the client or play a large role in the representation. In other words, a lawyer may be considered to have “personally represented” a client under relatively modest circumstances.  Tex. Comm. on Prof’l Ethics Op. 693 (2022).

[3] Tex. Comm. on Prof’l Ethics Op. 670 (2018).

[4] Id.; see Tex. Disciplinary R. Prof’l Conduct 1.05.

[5] Id.; see Tex. Comm. on Prof’l Ethics Op. 699 (2024) (law firm’s employment agreement may not contain blanket prohibition that prevents departing lawyer from making and retaining copies of client files in which lawyer personally represented client).

[6] Tex. Comm. on Prof’l Ethics Op. 684 (2019).

[7] Id. 

[8] Id.

[9] Id.