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If a lawyer (other than an in-house lawyer) is asked by their client to copy all in/out communication that the lawyer sends/receives in relation to the client — be it communication with the courts or any party — can they refuse? Will they refuse? Can it be made part of the retainer agreement that all communication is copied to the client? Could the lawyer face any consequences if they intentionally do not copy some of the communication despite the agreement?

(Any jurisdiction that you can answer about)

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    Where? Codes of ethical conduct diverge vastly. In some cases such might be mandated or prohibited. And the question of "WILL" they do something is entirely depending on the lawyer: some are dicks, others would shoot themselves accidentally trying to prove the killing alleged to their client was an accident....
    – Trish
    Aug 12, 2022 at 12:01
  • @Trish If you have good knowledge about the answer in any jurisdiction, please post it and tag with that jurisdiction. By asking "will?" I mean what incentives lawyers typically have to act one way or another. Maybe copying all comms to the client is fine for all and one wouldn't do it just because they're a dick. Maybe copying all comms is a bad idea for most lawyers in general for some objective reasons. This is what I want to know.
    – Greendrake
    Aug 12, 2022 at 12:09
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    This might make a better legal question if you edited the headline to ask if they can be compelled to.
    – Michael
    Aug 12, 2022 at 18:15
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    @Michael "compelled" suggests that they would rather not, which I don't know at the outset. If you know why they would rather not — that's part of the answer. Also, I don't know what's wrong with the question as it stands.
    – Greendrake
    Aug 12, 2022 at 22:55

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If a lawyer (other than an in-house lawyer) is asked by their client to copy all in/out communication that the lawyer sends/receives in relation to the client — be it communication with the courts or any party — can they refuse?

Yes.

The rules of professional conduct for lawyer (at least in the U.S. within which there isn't that much variation on this point) are very specific about what does and does not have to be communicated (not that there aren't gray areas). This is "par for the course" in the absence of another agreement between the parties.

Unless there is an express provision otherwise in a retainer agreement or subsequent agreement of lawyer and client, a lawyer is bound only to disclose what ethical rules require which is potentially less demanding although it still requires a high level of disclosures of certain things.

Ultimately, the file belongs to the client and that can be obtained in due course, for example, at the conclusion of an attorney-client relationship, but contemporaneous delivery is something that a lawyer generally has discretion not to provide.

For what it is worth, another sticky area is whether indecipherable notes on, for example, scraps of paper or quick in the moment handwritten notes on materials from other cases (e.g. a phone message written down on the back of a printed out internal memo for another case since it was the only paper easily at hand at that moment), are or are not part of a client file.

Will they refuse?

Some might, other might not. Younger lawyers tend to be more comfortable with this kind of demand than older ones, as attitudes towards the nature of the attorney-client relationship have evolved over time towards a more hands on involvement by the client approach.

The fact that a client makes the demand tends to reflect a level of distrust of the attorney (or in attorneys generally), which may be a symptom that the attorney-client relationship is not a good fit. A lawyer seeing such a demand up front may conclude that someone is likely to be a problem client and decline to take them on as a client when that is an option.

Can it be made part of the retainer agreement that all communication is copied to the client?

Yes.

Could the lawyer face any consequences if they intentionally do not copy some of the communication despite the agreement?

If it isn't otherwise an ethical violation not to disclose the information (e.g. a settlement offer from the other side would have to be disclosed anyway) independent of the retainer agreement or a subsequent agreement between attorney and client, it might be a breach of contract if the attorney and client had agreed to do so, but it would be rare that the damages would be more than nominal.

Even then, relief would be possible only if it was a "substantial" or "material" breach of the contract. Intentionally not copying someone on, for example, a string of short emails between your lawyer and opposing counsel over when they would have their next telephone conference with each other, for example, might not meet that threshold.

So, while a breach of contract suit against your former lawyer is theoretically possible, firing the lawyer and seeking another lawyer if you aren't happen with your current lawyer's adherence to your requests would be the usual solution.

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    Very good point on the "conclusion of an attorney-client relationship", and "settlement offer[s]" -- forgot to mention in mine.
    – kisspuska
    Aug 16, 2022 at 20:40
  • Great answer! "The fact that a client makes the demand tends to reflect a level of distrust of the attorney" — true, though, on the other hand, any hesitation on the lawyer's side to agree to copy all comms may be interpreted as that the lawyer may have something to hide from the client, and, therefore, the question of trust is not out of place.
    – Greendrake
    Aug 17, 2022 at 0:55
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Ownership of documents, and therefore any duty to make them available to a client, depends on the type of document and its purpose.

The Law Society's guidance to solicitors concerning the ownership of documents - if there is not already an agreement with the client about who owns them - says:

Whether your firm owns a document depends on your role when the document was created, either acting as:

  • a professional adviser, or

  • the client’s agent

Taking each in turn:

Acting as a professional adviser

If you were acting as a professional adviser, ownership of the documents depends on the purpose of this relationship. If one of the purposes of the relationship was to create a document, the document will usually belong to the client.

Whereas:

Acting as a client’s agent

You act as the client’s agent if you send or receive correspondence for them. This correspondence belongs to the client in most cases.

The guidance goes on to say:

Usually the client owns documents:

  • they sent to your firm, except where ownership was intended to pass to your firm

  • sent or received by your firm acting as the agent of the client

  • produced when you were acting as a professional adviser to the client, and one of the purposes of that relationship was to create the document. Examples are agreements or written representations

  • prepared by someone else, including the client's other advisers, during their relationship with you, and paid for by the client. For example, opinions of counsel and experts' reports

And that:

Usually your firm owns:

  • documents prepared for your firm's own benefit or protection

  • documents prepared to help your firm do its job, for example file copies of letters written to the client, drafts and working papers

  • internal communications created during the retainer

  • communications written by the client to your firm

  • accounting records, including vouchers and instructions

One option for the client is to make a Subject Access Request (SAR) requesting the documents from their solicitor. According to the Information Commissioner's Office, if the solicitor fails to comply with a SAR:

the requester may apply for a court order requiring you to comply. It is a matter for the court to decide, in each particular case, whether to make such an order.

Note that:

It is a criminal offence to alter, deface, block, erase, destroy or conceal information with the intention of preventing disclosure of all or part of the information a person making a SAR would have been entitled to receive.

But one can defend this offence if they prove that:

  • the alteration, defacing, blocking, erasure, destruction or concealment of the information would have happened regardless of whether the individual made a SAR; or

  • you acted in the reasonable belief that the person making the SAR was not entitled to receive the information requested.

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  • I would've thought this was more about GDPR type right to access rather than ownership as such. But it seems not. Why is the latter framing apparently more applicable? Aug 14, 2022 at 21:52
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    @Joseph P. I would think it is because such matters were framed in terms of ownership hundreds of years before the GDPR existed. Aug 14, 2022 at 22:33
  • Yes, but we aren't discussing hundreds of years before the gdpr existed. And even if it can be established that a client doesn't own material, it seems that they would still have access rights as a data subject? And if that is so which I can't see why it wouldn't be, then wouldn't approaching it in modern times from the gdpr angle greatly simplify things and sidestep a whole lot of irrelevant complications? Aug 14, 2022 at 23:10
  • What about documents that the lawyer receives from 3rd parties? Those parties own them, yet the client wants all the copies the lawyer gets.
    – Greendrake
    Aug 14, 2022 at 23:24
  • I don't actually think that ownership is relevant here. Most, if not all documents related to a court proceeding fall in the scope of fair use when copies are made for the parties. Some documents (e.g. court judgments) are not copyrighted at all which means unlimited copies can be made for free use and so ownership is irrelevant.
    – Greendrake
    Aug 15, 2022 at 7:05
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The question may refer to counsel of choice, and appointed counsel.

Counsel of choice based on civil contract

In the case of counsel of choice, this matter is in the hands of the parties to the letter of engagement or engagement agreement. If you set such provisions forth, that may bind the attorney. Whether or not you may assert damages to overcome the trifle threshold of courts is another question.

The only possible way I could imagine, provided one would actually be able to ensure that no off-record communications take place without the knowledge of the client, is properly setting forth liquidated damages for the failure of the production of each record of communication within, say, 3 business days, with quicker production based on appearances and court dates, and even add provisions for accruing liquidated damages for delay beyond those pre-set periods.

A case must be really strong and for some reason highly in demand for any non-family, non-childhood friend attorneys (who you wouldn't even try to have something like this with signed by) to agree to such terms. Even if they did, you would, most if not all the times, not even know that this is happening. (Sad, but true) Effectively, despite an agreement, such terms are probably unenforceable.

Public pretender appointed by the government

"[The] United States Supreme Court and th[e California Supreme Court] establish beyond dispute that to satisfy constitutional standards an attorney appointed to represent an indigent must be capable of affording such defendant the effective assistance of counsel. (See, e.g., In re Saunders (1970) 2 Cal.3d 1033, 1041 [ 88 Cal.Rptr. 633, 472 P.2d 921]; In re Williams (1969) 1 Cal.3d 168, 176 [ 81 Cal.Rptr. 784, 460 P.2d 984]; Powell v. State of Alabama (1932) 287 U.S. 45, 72 [77 L.Ed. 158, 172, 53 S.Ct. 55, 84 A.L.R. 527].) The "effective" assistance of counsel under the Sixth Amendment of the U.S. Constitution as construed by the U.S. Supreme Court has a duty to render performance meeting at least the prevailing professional norms, or standards of the defense function. (see United States v. Schmidt (2d Cir. 1997) 105 F.3d 82, 90; United States v. Cochrane (9th Cir. 1993) 985 F.2d 1027, 1029; and United States v. Windsor (7th Cir. 1992) 981 F.2d 943, 946-947)

The substance of those prevailing professional norms or standards is an elusive one, but the ABA Standards or the Rules of Professional Conduct of the State Bar of the State in question is what a court will typically rely on. (see for e.g. James v. Ryan (9th Cir. 2012) 679 F.3d 780, 807-08; People v. Pope, 23 Cal.3d 412, 152 Cal. Rptr. 732, 590 P.2d 859 (Cal. 1979)) Although this, especially given it occurred in multiple cases, does imply that the ABA standards have a semi-mandatory effect in setting forth the prevailing professional standards, the courts will always be able to excuse themselves not to follow those not previously deemed by a higher court to be such.

I am aware of no Supreme Court (or circuit court) case law that mandates a government-appointed counsel to produce all records of his communications to an accused (with the exception of at the conclusion of the representation as ohwilleke pointed out). Under contemporary constructions of the U.S. Constitution, it is held that neither the First nor the Fourteenth amendments “mandate[] a right of access to government information or sources of information within the government's control" (Houchins v. KQED (1978) 438 U.S. 1.) (the reason why the Freedom of Information Act, or FOIA is typically used for production instead of any Constitutional provisions) which implies that the common-law right of access of government information and records is not (yet) deemed to have been protected through the unenumerated rights explicitly protected under the Ninth Amendment.

In fact, contravening a broad and liberal construction, in Strickland v. Washington (1984) 466 U.S. 668, 687, the U.S. Supreme Court set forth a high bar in a 2-prong test for when an accused may prevail on an ineffective-assistance claim on appeals which require that (1) appointed counsel’s performance was deficient and (2) the deficient performance prejudiced his defense. Accordingly, even if found that the ABA Standards are somehow more than semi-mandatory, the second prong would be a high bar to clear in connection with specific individual records of communication.

What is currently recognized is at most a "soft" duty a "should", and not "shall" (exactly as the ABA Standards set its standards forth) on counsel without any actual repercussions.

For example a state-bar code of conduct in California provides:

An attorney must “keep [the accused] about significant developments relating to the representation including promptly complying with reasonable requests for information and copies of significant documents when necessary to keep [the accused] so informed.” (Cal. Rules of Prof. Cond., rule 1.4 (a)(3))

As it is clear, the California State Bar doesn't think statutory right to the inspection or copying of government records apply for a limited scope of any members of the public who happen to be privileged to the privileged communications of the counsel of the accused relative to the proceedings.

Legal arguments could support a stronger mandatory production based on the fact that (i) the Sixth Amendment provides that "the accused shall enjoy the right to a […] public trial" which includes the right of the public to review court records, and the public views of the client-attorney privileged & confidential communication, including such between counsel and any third parties, is merely exempted in the interest of the accused under the privilege. The right of the public to court records in an open trial, is the individual right of each member of the public. Accordingly, a prohibition of disclosure of records of communication privileged to the accused (incl. those between counsel and any ancillary staff, the court, or the people) is merely in place to not deprive the confidential communication privilege of the accused. Since there is no breach of confidentiality in the accused's own inspection or copying of such records, the prohibition does not apply to the accused. Accordingly, arguably, an accused shall have a constitutional right to the inspection of the records of such communications when reading the constitutional right to an open trial into the right to the assistance of government appointed counsel who is a substantial organ of the trial. A trial mandated open for the benefit of the accused. While this argument may appear sound, noncompliance with its logic — even if it was established by case law — would not compel counsel to comply unless they have a reason to fear that the accused could later prevail on a claim of ineffective assistance of counsel as a result of the failure or omission to comply with requests of production of records of herein-discussed communications.

Another argument that can be made, and is derived from a fundamental constitutional right, the right to allocate certain strategic decisions upon counsel, or even more so from the right implied therein to revoke such allocation and act in one's own behalf (see Faretta v. California (1975) 422 U.S. 806, 819-20) is that one may not be able to make a knowing, intelligent and voluntary decision about whether or not revoke such allocation, and speak for themselves and in their own defense without having full knowledge of the facts and circumstances of counsels discharge of his duties including what and how they communication with others relative to matters pertaining the accused. In other words, the right to self-representation, the right to conflict free counsel, and the right to the effective assistance of counsel is circumvented and preempted if the accused is kept in the dark about what counsel does behind the back of the accused for which it is arguably up for no debate that counsel should produce.

Then again, the arguments proposed are not based on established construction of constitutional law; however, they are arguably implied in reading together constitutional provisions and their constructions.

All in all, however, the public-defender game is designed well to prevent the accused from poking their nose into the government's business of delivering the accused into for-profit penitentiaries on conveyor belts in which -- unless a media-covered high-profile case -- the public defender is nothing, but a sock puppet on one hand of the court with the prosecution on the other. It is almost completely futile to try and circumvent the proceeding from the angle of trying to hold the attorney to account for their malpractice in third-party communications, or try to press or strong-arm them to fulfill their function. They will simply deny the existence of the communications.

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