Give Me the Darn File!

 Posted on June 08, 2007 in Uncategorized

About a month ago a man hired me to replace his previous lawyer (someone who advertises extensively on the Web) on his felony (this actually happens fairly often - not everyone gets the "hiring a criminal-defense lawyer" thing right the first time). I drew up a motion to substitute counsel, got the client's signature on it, and sent it to the former lawyer along with a letter requesting that he sign the motion and return it to me along with the client's entire file "so that I [could] continue my trial preparation from where [he] left off."

He signed the motion and returned it to me within four days, but did not send me his file. I called and talked to him, and he promised to send me the file, but still did not do so. I called him again, and he promised it on a specific day. That day has come and gone, trial is coming up quickly, and I still have no way of knowing what work, if any, the previous lawyer did (operating under the assumption that the answer is "none," I'm doing everything that should have been done by him six months ago). I have asked the previous lawyer several more times for the file and had no further response.

Here's the rule in Texas, according to Ethics Opinion 570:

Under the Texas Disciplinary Rules of Professional Conduct, a lawyer must upon request provide to a former client the notes of the lawyer from the lawyer's file for that former client except when the lawyer has the right to withhold the notes pursuant to a legal right such as a lawyer's lien, when the lawyer is required to withhold the lawyer's notes (or portions thereof) by court order, or when not withholding the notes (or portions thereof) would violate a duty owed to a third person or risk causing serious harm to the client.

The previous lawyer has no lien on the file (even if he did, Texas Disciplinary Rule 1.15(d) would require him to return the file since retaining it prejudices the client); there is no court order requiring him to withhold portions of his notes; and he has no duties to any third parties with respect to anything that could conceivably be in the client's file. So why isn't the file on my desk?

What would you do?

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