Last month, the United States District Court for the Southern District of New York issued an opinion reiterating the that "entire file" approach is the answer to the age-old question of "what constitutes a client file" under New York law. Eletson Holdings, Inc. and Eletson Corp. v. Levona Holdings, Ltd., No. 23-CV-7331 (LJL), 2025 WL 893686, at 13-15 (S.D.N.Y. Mar. 24, 2025). As the court explained, under the "entire file" approach, "[u]pon termination of the attorney-client relationship, a client has presumptive access to its former attorney's entire client fileon a represented matter, absent a substantial showing by the attorneys of good cause and subject to the client paying for the assemblage and delivery of the documents to the client." Id. at 13. This entire file approach includes all documents reflecting communication between the attorney and client. Id. The "entire file" also includes all drafts, copies, and notes that related to the lawyer's representation of the client. Id.
The entire file standard was first adopted by the Court of Appeals of New York in 1997 in the matter of Sage Realty Corp. v. Proskauer Rose Goetz & Mendelsohn L.L.P., 91 N.Y.2d 30, 36-38 (1997). In that matter, the Court of Appeals weighed the "entire file" approach vs. the "end product" approach to determine which was the more appropriate standard for defining the client's file. Sage Realty Corp., 91 N.Y.2d at 34-37. Under the more restrictive "end product" approach, the Court observed that the client file consisted of only documents that were considered the so-called "final products;" such as pleadings actually filed with the court or final versions of contracts, wills, or documents prepared for the client. Id. at 35. Thus, preliminary drafts, the attorney's notes, and other "work product" that lead to the creation of the final product were not considered part of the client file under the "end product" approach. Id. The Court of Appeals rejected this "end product" approach as too restrictive and adopted the "entire file" approach. Id. at 36-37. In reaching this conclusion, the Court observed that the "expansive general right of the client to contents of the attorney's file" was more closely aligned to prior court decisions defining a client file and ensures that the attorney does not have a superior property right than the client to the client's file. Id. at 36. In addition, the Court found that the "end product" approach places an unfair burden on the client to demonstrate a need for specific work product documents, opting instead to place the burden on the attorney to demonstrate that a particular work product document would not serve a useful purpose in the client's future legal needs. Id. Finally, the Court observed that the "entire file" approach is supported by the attorney's other ethical obligations owed to the client, such as the duties of openness and conscientious disclosure to the client by the attorney as a fiduciary. Id. at 37.
Notwithstanding the broad scope of documents that constitute the "entire file," the Court of Appeals did recognize a few exceptions. Sage Realty Corp., 91 N.Y.2d at 37. For example, the lawyer need not produce documents to the client which might violate a duty of nondisclosure owed to a third party. Id. In addition, documents that were "intended for internal law office review," such as those concerning the lawyer's own private thoughts (e.g., including assessment of the client, impressions of facts or legal issues, or directions to other firm employees to perform specific tasks on the case). Id. at 37-38. The Court observed that these types of documents "are unlikely to be of any significant usefulness to the client or to a successor attorney," and, therefore, fall outside of the scope of the "entire file" and are not required to be turned over by the attorney to the former client at the conclusion or termination or representation. Id. at 38.
If you have questions regarding your ethical obligations owed to a former client, the Legal Ethics Counseling attorneys at Carr Maloney P.C. are here to help.
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