What Happens to Client Files When a Collaborative Case Fails: The Massachusetts Rule for Lawyers

You have represented a client in a Collaborative Law case. Your whole professional team has done its best. At the end of the day, though, the parties have decided in good faith that they are no longer willing to negotiate and need a court to provide them with clarity. Your client pays you in full, but then requests for a copy of her files. What documents do you need to turn over? Do they include the analysis of the parties' rights and obligations you prepared for an offline conversation with the other lawyer? Does it not seem inconsistent with the whole notice of a Collaborative process to turn over a roadmap for a lawsuit to the next professional in line? You are especially mindful of Standard 5.5 of the International Academy of Collaborative Professionals' Ethical Standards for Collaborative Practitioners, which calls on you to avoid contributing to the conflict of the client.

There are two new developments to give us guidance. On July 1, 2015, the American Bar Association's Standing Committee on Ethics and Professional Responsibility released Formal Opinion 471, "Ethical Obligations of Lawyer to Surrender Papers and Property to Which Former Lawyer is Entitled." On the same day, a new version of the Massachusetts Rules of Professional Conduct became effective, which preserves a deviation from the ABA Model Rules.

The ABA opinion notes that there are two lines of cases, the more common "entire file approach," under which a lawyer must turn over the entire file with only a few commonly recognized exceptions, and the "end product approach," in which a client is entitled to the end product of a lawyer's work but not necessarily all the documents that lead up to it. The opinion then explores some of the nuances of these definitions. For instance, documents often do not need to be disclosed under the entire file approach if disclosure would violate a duty to a third person, such as private attorney form files used in drafting documents.

Massachusetts follows a version of the minority rule, the end product approach, which is embodied directly in the text of the Commonwealth's variation of the Rules. Rule 1.16 (e) is a holdover from the former Code of Professional Conduct. It states that a lawyer must turn over the following to a client at the end of representation:

"(1) all papers, documents, and other materials the client provided to the lawyer.

"(2) all pleadings and other papers filed with or by the court or served by or upon any party. The client may be required to pay any copying charge consistent with the lawyer's actual cost for these materials, unless the client has already paid for such materials.

"(3) all investigatory or discovery documents except those for which the client is then subject to pay under the fee agreement but has not paid, including but not limited to medical records, photographs, tapes, disks, investigative reports, expert reports, depositions , and demonstrative evidence. The lawyer may at his or her own expense retain copies of any such materials.

"(4) if the lawyer and the client have not entered into a contingent fee agreement, the client is entitled only to that portion of the lawyer's work product (as defined in subparagraph (6) below) for which the client has paid.

"(5) if the lawyer and the client have entered into a contingent fee agreement, the lawyer must provide copies of the lawyer's work product (as defined in subparagraph (6) below) The client may be required to pay any copying charge consistent with the lawyer's actual cost for the copying of these materials.

"(6) For purposes of this paragraph (e), work product shall consist of documents and tangible things prepared in the course of the representation of the client by the lawyer or at the lawyer's direction by his or her employee, agent, or consultant , and not described in paragraphs (2) or (3) above. Examples of work product include without limitation legal research, records of witness interviews, reports of negotiations, and correspondence.

"(7) notwithstanding anything in this paragraph (e) to the contradiction, a lawyer may not reflect, on grounds of nonpayment, to make available materials in the client's file where retention would prejudice the client unfairly."

In other words, if the client has paid for "work product" in a Collaborative matter, the lawyer must turn it over. However, even though the definition of "work product" broadly includes "documents and other tangible things" produced by the lawyer in the course of representation, the examples include only end-product items. What does this mean? You must turn over:

-A written analysis you have prepared at the client's request, whether you have previously sent it to the client or not; and

-Legal research you have done as part of your analysis

The Massachusetts rules do not specifically address a lawyer's personal notes, drafts or internal memoranda, although the Opinion notes that other these items need not be disclosed in other jurisdictions that follow the end product rule. It is unclear which line of reasoning the Supreme Judicial Court would follow. In the absence of specific direction, the better approach may be to tread lightly: consider carefully what you put in writing, since you may need to turn it over to successor counselor.



Source by Jeffrey N Fink

A Limousine Trip To Plymouth Massachusetts

One is never restricted as to how a limousine can be chartered – whether it is for your business or pleasure use. Whether it is going to a long journey or a short trip, hiring a limousine for your travel needs in Plymouth, Massachusetts is never a bad idea.

When you book a limousine for your trip to Plymouth, you can be rest assured that you will be able to enjoy your holiday with your friends and loved ones without having to stress yourself out driving and asking for directions to the places that you want to go , looking for a parking space, or having to get done in a bad traffic, as these are all taken care of by your limousine driver.

Once you have gathered all your friends for that special trip to Plymouth, your limousine driver is more than ready to pick all of you up and start your journey. Perhaps if you and your friends are into some sight seeing on the waters, you may want to tell your limousine driver to take you to Mayflower II State Pier, for you to cruise Plymouth Harbor in comfort on the Pilgrim Belle, which is a Mississippi- style paddlewheeler. Due to the protected nature of Plymouth Harbor, you and your limousine friends will have a smooth ride on Pilgrim Belle.

On the Pilgrim Belle, you and your limousine friends may choose to sit outside on the spacious sundeck while sipping your favorite drinks, or enjoy some food and cocktails (for those 21 years and older only) at their galley. Do not forget to ask the bartender about the Paddlewheel Punch! Taking a cruise aboard the Pilgrim Belle is definitely a perfect way to get acquainted with Plymouth and the cruise takes just over an hour.

Next, you and your limousine friends may want to experience some whale watching and you will find that at Captain John Boats and they have now expanded its education program for both public and charter whale watches. You will also get to listen to your naturalist who will describe historic points to you and your limousine friends. When you pass Gurnet Light and leave Plymouth Harbor, take a walk down below inside the main cabin and join the naturalists for a short introductory video – that features sequences of the most common whales, dolphins and porpoises that migrate to New England waters to feed through the season. This is not just a whale watch experience, but a marine wildlife cruise that you will remember for a long time to come!

After that, you can ask your limousine driver to take you to Hearth 'n' Kettle at the John Carver Inn for some unique dining experience in an attractive Colonial setting. When you and your limousine friends finally climb back into the limousine to head home after dinner, you can have a peace of mind knowing that your limousine driver will send you home safely.



Source by Marsha Maung