Formal Advisory Opinion No. 96-1

State Bar of Georgia
Issued by the Supreme Court of Georgia
On January 25, 1996
Formal Advisory Opinion No. 96-1

This opinion relies on the Canons of Ethics, including both Directory Rules and Ethical Considerations, that bear upon matters directly addressed by Rule 1.8(h).  The conduct, which is the subject of this Formal Advisory Opinion, is now specifically and clearly prohibited by Rule 1.8(h).

For references to Standard of Conduct 22(b), please see Rule 1.16(d).

For an explanation regarding the addition of headnotes to the opinion, click here.

QUESTION PRESENTED:

The question presented is whether an attorney may require a client, who desires to discharge the lawyer, to enter into an agreement releasing the lawyer for all claims by the client against the lawyer, including any disciplinary complaint with the State Bar, in order to obtain the client's files from the lawyer and a waiver of any claim of lien by the lawyer against such files.

SUMMARY ANSWER:

A lawyer should represent a client competently and should exercise independent professional judgment on behalf of the client by putting the interests of a client ahead of the lawyer's own personal interests. Therefore, a lawyer should not condition the return of a former client's files upon the execution of a release of claims and a release of State Bar disciplinary complaints by the client against the lawyer.

OPINION:

It has been brought to the attention of the State Bar's Disciplinary Board that lawyers are following a practice of requiring a client, who desires to discharge the lawyer, to execute an agreement releasing the lawyer from any liability for claims relating to the lawyer's representation of the client in order for the client to obtain the papers and documents that constitute the client's file. One such agreement includes the following provision:

...it is hereby agreed that [the client] hereby releases and forever discharges [the lawyers]...from all...claims,...including any disciplinary complaint with the State Bar of Georgia...which [the client] ever had or may have [against the lawyers] including but not limited to [the lawyers] representation of [the client] in the above stated matter. ...

[The lawyers]...waive any claim of lien that they have in said matter.

It is apparent from reviewing this provision that the lawyer being discharged is attempting to condition the release of the client's files upon the waiver of any claims, including claims for malpractice and State Bar disciplinary complaints, by the client against the lawyer. This attempt by the lawyer to limit his or her liability for malpractice constitutes a failure to comply with Canon 6 of the Canon of Ethics, which provides that a lawyer should represent a client competently. As clearly explained in Ethical Consideration 6-6:

A lawyer should not seek, by contract or other means, to limit his individual liability to his client for his malpractice. A lawyer who handles the affairs of his client properly has no need to attempt to limit his liability for his professional activities and one who does not handle the affairs of his client properly should not [be] permitted to do so.

The provisions of this Ethical Consideration are emphasized by Directory Rule 6-102:

(A) A lawyer shall not attempt to exonerate himself from or limit his liability to his client for his personal malpractice.

Clearly, the practice of requiring a client, who desires to discharge the lawyer, to execute an agreement as described herein before releasing the client's files is an attempt to exonerate the lawyer from individual liability to his or her client. As such, this practice constitutes a violation of Canon 6 of the Canons of Ethics.

Furthermore, Canon 5 of the Canons of Ethics provides that a "a lawyer should exercise independent professional judgment on behalf of a client." As explained in Ethical Consideration 5-1:

The professional judgment of a lawyer should be exercised, within the bounds of the law, solely for the benefit of his client and free of uncompromising influences and loyalties. Neither his personal interests, the interests of other clients, nor the desires of third persons should be permitted to dilute his loyalty to his client.

By attempting to limit his or her liability for malpractice as a condition of releasing the client's files, the lawyer puts himself or herself into an adversarial relationship with the client. By purposefully withholding papers, documents, and evidence in the client's file until the client agrees to execute an agreement releasing the lawyer from any liability for claims or malpractice, the lawyer's personal interests are placed ahead of the interests of the client. This conduct amounts to a failure to exercise independent professional judgment on behalf of the client in violation of Canon 5 of the State Bar of Georgia's Canons of Ethics.

In addition, by conditioning the return of a client's files and the waiver of any lien that the lawyer might have against such files upon the execution of a release of claims for malpractice and complaints to the State Disciplinary Board, the lawyer has potentially caused prejudice to the client in violation of Standard 22(b) of the Standards of Conduct for the State Bar of Georgia which provides as follows:

A lawyer shall not withdraw from employment until he has taken reasonable steps to avoid foreseeable prejudice to the rights of his client, including delivering to the client all papers and property to which the client is entitled and complying with applicable laws and rules.

By such conduct, the lawyer has also potentially caused prejudice to the client in violation of Formal Advisory Opinion No. 87-5 which provides as follows:

An attorney's ethical obligation not to cause prejudice to his or her client is paramount over rights under the lien statute. Accordingly, an attorney may not to the prejudice of a client withhold the client's papers or properties upon withdrawal as security for unpaid fees.

In summary, the practice of requiring a client, that desires to discharge a lawyer, to execute an agreement, such as described herein, is an attempt by the lawyer to either exonerate himself or herself from claims for malpractice or limit his or her liability to the client for acts of malpractice, and such conduct is improper.