Who gets your file when you switch lawyers?

Your new lawyer can usually get copies of the parts of the file that matter to your case, and you get your own original papers back. In Florida, though, the file itself is treated as the old lawyer's property, so a handoff goes better when you ask for specific things than when you ask for "my file."

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It is natural to think of the file as yours. It holds your records, your photographs and the history of your case. Florida's rules and court decisions draw the line somewhere else, and where they draw it decides how quickly a switch goes and what, if anything, the first firm can hold back.

There are four questions inside the one you asked. Who owns the file? What is your old lawyer required to hand over? Who pays for the copies? And can the old firm keep materials until the case costs are paid? The last one is the one that stops handoffs, and the Florida Bar has said something specific about it.

Who owns your case file in Florida?

The lawyer does. The Florida Bar's ethics committee puts it this way: "Florida case law indicates that the file generated by a lawyer is the property of the lawyer rather than the client."

The source is Dowda & Fields v. Cobb. A client had discharged a law firm, and the trial court ordered the former lawyers to deliver their entire office file, apart from intra-office notes and memoranda, to the new lawyer. The Fifth District reversed that order, holding that the file and its contents are the lawyer's personal property. Fourteen years later the same court denied a former client's petition to force a private lawyer to hand over copies of the records free of charge, in Donahue v. Vaughn.

That is not the whole picture, because ownership of the paper does not free the lawyer from duties to you. Rule 4-1.16(d) sets those duties.

Your fee agreement matters too. Rule 4-5.8(a), which governs lawyers who leave law firms, says that the contract for legal services creates the legal relationships between the client and the firm, "including the ownership of the files maintained by the lawyer or law firm." Read your agreement for any paragraph about the file.

What does your old lawyer have to hand over?

Rule 4-1.16(d) says that on termination a lawyer "shall take steps to the extent reasonably practicable to protect a client's interest, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled, and refunding any advance payment of fee or expense that has not been earned or incurred." The sentence that follows lets the lawyer "retain papers and other property relating to or belonging to the client to the extent permitted by law."

The Bar's 2021 opinion turns that into specifics. A lawyer has an ethical obligation to comply with a client's or former client's reasonable request for copies of file material where that information would serve a useful purpose to the client. A lawyer generally must provide the client's own property, such as original documents with intrinsic value that the client gave the lawyer. Beyond that, the opinion gives two representative lists and says both are non-exclusive.

What a lawyer should consider providing

• Documents filed with a court
• Signed documents the lawyer prepared for your use
• Correspondence about your matter that the lawyer finds necessary to protect your interests
• Electronic documents, records and information in your matter that the lawyer determines are necessary to protect your interests
• Discovery that you paid for
• Legal opinions issued at your request
• Billing statements

What a client is generally not entitled to

• Confidential information about another client
• Internal administrative materials such as conflict checks, work assignments, and personal notes, assessments or impressions of clients
• Drafts of documents and unsigned documents
• The firm's consultations about malpractice or ethics
• Internal legal memoranda and research

The opinion adds a caution that matters in a switch. Because Rule 4-1.16 requires steps "reasonably practicable to protect the client's interests," a lawyer may in some circumstances have to hand over material that would ordinarily be withheld, such as a draft or an unsigned document. What your new lawyer needs depends on where the case stands. That is why the useful request is "send what the new lawyer needs to continue the case," not "send everything."

The Statement of Client's Rights you received with your contingent fee contract says the same thing in plain words. Item 2 says that once a lawyer begins to represent you, the lawyer "may not withdraw from the case without giving you notice, delivering necessary papers to you, and allowing you time to employ another lawyer."

Who pays for the copies?

You can be charged, but only a reasonable amount. The Bar's opinion says the lawyer does not have to bear the cost of reproducing the file, and that the cost of copying or any other means of access "should be reasonable and reflect the actual costs incurred." A lawyer may also charge a reasonable amount for retrieving and delivering file materials. The opinion adds that it is advisable for the firm to put these charges, and the way it figures them, in the original written agreement.

Two practical points follow. Check the first contract for a copying or file-retrieval clause before anyone quotes you a figure. And ask the new firm, before you hand over any money, who will cover copying charges. That is part of the arrangement between you and the new firm, and it should be in writing.

Can your old firm hold your file until the costs are paid?

Sometimes, and the contract decides.

The Bar's opinion starts from the general rule. In appropriate situations a lawyer may refuse to provide copies of file material and instead assert an attorney's lien, and those situations include a client's refusal to reimburse a discharged lawyer's incurred costs or to give a reasonable guarantee that the costs will be repaid at the end of the case. The opinion adds that it may be ethically permissible to assert a lien on materials in a case file, but that "the validity and extent of the lien is a question of law to be decided by the courts."

Then comes the limit. If the lawyer and client have agreed that the client's repayment of advanced costs is contingent on the outcome of the matter, the opinion says the lawyer may not ethically assert a retaining lien for outstanding costs before the contingency occurs. The same goes for fees. The opinion relies on Rosenberg v. Levin, under which a lawyer discharged without cause before the end of a contingency matter recovers only the reasonable value of the work, and that claim arises only if the case recovers money. So the lawyer may not ethically assert a retaining lien for fees in a contingent fee case until the contingency has occurred.

Rule 4-1.8(e)(1) is where the cost version of this begins. It lets a lawyer advance court costs and expenses of litigation with repayment contingent on the outcome. Some contingency contracts are written that way and some are not, so the sentence in your first contract about what happens to costs if there is no recovery is the one to find. The costs page explains how to read it.

This example is made up to show how the contract decides it. It is not a real case.

Say the first firm advanced $9,000 in costs, and you change lawyers before the case has settled.

• Contract A says you owe costs only if there is a recovery. The Bar's opinion says the first firm may not ethically hold your file over those costs, because no recovery has happened yet. The costs are paid out of the recovery, if there is one.
• Contract B says you owe costs whether or not you win. The first firm may assert a retaining lien until the $9,000 is paid or reasonably guaranteed. The opinion still says the lien is limited by the duty to avoid foreseeable prejudice to you, and a court decides whether the lien is valid and how far it goes.

Two caveats keep this honest. An advisory opinion is not binding, and it speaks to what a lawyer may ethically do, which is not the same as what a court will order. The decisions on how a court handles a retaining lien are on the lien page, including the Fourth District's description of the lien as "passive" and its holding that a court can set the terms of security. And if you are in Contract B, you owe the costs whether or not you switch. Changing lawyers does not create the debt. It only decides when the question gets asked.

What does the old firm owe you when you discharge it?

You can discharge a lawyer at any time. The Comment to Rule 4-1.16 says "a client has a right to discharge a lawyer at any time, with or without cause, subject to liability for payment for the lawyer's services." Rule 4-1.16(a)(3) then requires a discharged lawyer to withdraw. What the lawyer owes you from there:

• Reasonable notice and time to employ other counsel (Rule 4-1.16(d)).
• Surrender of papers and property to which you are entitled, and refund of any advance fee or expense that was not earned or incurred (Rule 4-1.16(d)).
• Reasonable steps to limit the damage to you, even if the lawyer feels unfairly discharged. The Comment says a lawyer "must take all reasonable steps to mitigate the consequences to the client."
• An answer when you ask. Rule 4-1.4 requires a lawyer to promptly comply with reasonable requests for information, and the Bar's opinion applies it to file requests.

If a lawsuit has been filed, there is one more step, and your new lawyer handles it. Rule 4-1.16(c) requires a lawyer to comply with applicable law that requires notice to or permission of a court when ending a representation, and item 2 of the Statement says a lawyer often must obtain court approval before withdrawing from a case.

How does the file move from one firm to the next?

The order matters more than any single step. The same sequence is on the change-lawyers page, and this is the file's version of it.

1. Hire the new firm first. Do this before you end anything, so no one is ever without responsibility for your case. The new firm tells you what it needs from you in writing so that the old firm can release materials to it.
2. The new firm makes the request. It is the new firm's job to ask for the file material it needs and to say what it is asking for. We do not write the request for you, because that is legal work that belongs to the lawyer.
3. The old firm sends copies and an itemized list of the costs it spent. Item 6 of the Statement gives you the right to know how much your lawyer has spent on your behalf, so ask for the list even if the file arrives first.
4. If the old firm says it is holding something, ask what and why, in writing. If the reason is costs, ask for the amount and whether a reasonable guarantee would release the material. Those are the two outcomes the Bar's opinion names.
5. Check what arrived against what you know exists. The list in the next section is a starting point.

No rule sets a number of days. Rule 4-1.16(d) asks for steps "reasonably practicable," and the time in practice depends on how organized the first file is, whether it is paper or electronic, and whether the old firm is contesting the costs. If the answer is weeks and you have a deadline, say so in your first request. The timing page covers why the claim's deadline does not pause while a file moves.

What should you ask the old firm for?

Ask for the things that keep the case moving, and ask your new lawyer which ones matter most. A useful list:

What if the old firm stalls or refuses?

Work up the ladder in order, and keep it in writing. A dated record is what makes any later step quick.

1. Ask again in writing. Send a dated request to the attorney and the firm, say exactly what you need and why, and say when you need it. Rule 4-1.4 requires a lawyer to promptly comply with reasonable requests for information.
2. Ask what is being held and why. If the answer is costs, the useful question is the amount and what would release the material. That tells you whether you are facing a lien or only a delay.
3. Call the Bar's consumer line. The Florida Bar's Attorney/Consumer Assistance Program, 1-866-352-0707, may contact the lawyer about your concerns. The Bar's page lists a failure to return client papers and property among the situations the program may be able to help with. It is staffed 9:00 a.m. to 5:00 p.m., Monday through Friday. The staff cannot give legal advice or make decisions for you, and the program is not a substitute for court.
4. Ask the new lawyer about a court. Whether a lien is valid, and what security a court would require before material is released, is for a court to decide, and that is a lawyer's call.
5. Report a violation if it comes to that. The Bar's opinion cites The Florida Bar v. Varner, 992 So. 2d 224 (Fla. 2008), as a case in which failing to give successor counsel a copy of the client's file violated Rule 4-1.16(d). A complaint is made on the Bar's Inquiry/Complaint form, and the Bar says a complaint should come only after other ways of resolving the problem have been unsuccessful.

Start with the first two. The third exists for the cases where they do not work. The calls page has the same ladder for a lawyer who has gone quiet.

What should you gather before you talk to a new firm?

• Your first contract and the Statement of Client's Rights, including any paragraph about the file, copying charges or costs.
• Any itemized costs list and any letter about a lien or unpaid costs.
• The documents you personally have: photographs, medical paperwork, insurance letters and anything you signed.
• The dates that matter: the accident, the day you signed with the first firm, and any offer you were told about.
• A short list of what you do not have but think exists, such as a report you were never shown.

Before you leave your current lawyer

Find the new firm first and end the old representation second. The order of the steps keeps anyone from being without responsibility for the case, and a lawyer who is discharged recovers only the reasonable value of the work done, and only if the case recovers money. If the file is the thing worrying you, hold on to what the Bar's opinion says: your own papers and useful copies, at reasonable cost, with unpaid costs or fees the situation in which a firm may hold material back.

Common questions

Who owns my case file when I change lawyers in Florida?

Florida case law treats the file a lawyer generates as the lawyer's property, not the client's, according to the Florida Bar's ethics committee in Opinion 88-11 (Reconsideration), citing Dowda & Fields v. Cobb. That does not leave you without rights. Rule 4-1.16(d) requires your old lawyer to take reasonable steps to protect your interests, including surrendering papers and property to which you are entitled, and the Bar's opinion says a lawyer must comply with a reasonable request for copies of file material that would serve a useful purpose to you.

Can my old lawyer refuse to give my new lawyer my file?

A lawyer generally has to provide your own original documents and has an ethical obligation to comply with a reasonable request for copies of useful file material. The one situation where a firm may hold materials back is an attorney's lien, which usually turns on unpaid costs or fees. Whether a lien is valid and how far it extends is a question for the courts, and an ethics opinion limits it in contingency cases.

Can my old firm hold my file until I pay the case costs?

In some situations, yes. The Florida Bar's opinion says a discharged lawyer may assert a retaining lien until costs are reimbursed or reasonably guaranteed. It also says that if your agreement makes repayment of costs depend on the outcome, the lawyer may not ethically assert a retaining lien for those costs before the case recovers. Your first contract decides which situation you are in.

What if my contract says I only owe costs if we win?

Then the Bar's opinion says the firm may not ethically hold your file over those costs before a recovery. Rule 4-1.8(e)(1) allows a lawyer to advance costs with repayment contingent on the outcome. Find the sentence in your contract that says so and bring it to the new firm, since it changes the first firm's position.

What am I entitled to from my old lawyer's file?

Your own original documents, and copies of file material that would serve a useful purpose to you. The Bar's opinion says a lawyer should consider providing documents filed with a court, signed documents prepared for your use, necessary correspondence, necessary electronic records, discovery you paid for, legal opinions issued at your request and billing statements. It says a client is generally not entitled to another client's confidential information, internal administrative materials, drafts and unsigned documents, ethics or malpractice consultations, and internal memoranda and research.

Can my old lawyer charge me for copying my file?

Yes, a reasonable amount. The lawyer does not have to bear the cost of reproducing the file, and the Bar's opinion says the charge should be reasonable and reflect the actual costs incurred. A reasonable amount for retrieving and delivering the materials is also allowed. Check your first contract for a copying clause and ask the new firm who will pay before you hand over any money.

How long does my old firm have to send my file?

No rule gives a number of days. Rule 4-1.16(d) requires steps to the extent reasonably practicable, and how long that takes depends on how organized the file is and whether the firm is contesting costs. If you have a deadline, say so in your written request.

What if my lawyer ignores my request for my file?

Send a dated written request, then ask what is being held and why. If the firm still does not respond, you can call the Florida Bar's Attorney/Consumer Assistance Program at 1-866-352-0707, which may contact the lawyer about your concerns. A complaint to the Bar is the last step, and your new lawyer can tell you whether a court should be involved first.

Does my new lawyer ask for the file or do I?

The new firm should make the request, and the old firm should send the material to the new firm. You sign what the new firm asks you to sign, and you keep copies of anything you send or receive. We do not write the request for you, because that is legal work that belongs to the lawyer.

Will my old lawyer's notes and internal memos be handed over?

Generally not. The Bar's opinion lists personal notes, assessments or impressions of clients, internal administrative materials, drafts and internal legal memoranda and research as material a client is generally not entitled to. The opinion adds that a lawyer's duty to protect you may require handing over some material that would ordinarily be withheld, such as a draft, depending on the facts.

Does my old firm keep a copy after I leave?

It is not obligated to give you its original file, because Florida case law treats that file as the lawyer's property. What the rules require is that it protect your interests, return your own documents and provide useful copies at reasonable cost.

What happens to my file if a lawsuit has already been filed?

The handoff works the same way, with one more step. Rule 4-1.16(c) requires a lawyer to comply with applicable law on notice to or permission of a court when ending a representation, and item 2 of the Statement says court approval is often required. Your new lawyer handles the court side.

Does SwitchMyAttorney contact my old firm to get my file?

No. We do not contact your current firm. If you later hire a new firm, requesting the file is a step you take with that firm, and the firm handles it.