Our nonprofit recently parted ways with its attorney. We are in the process of hiring a new attorney to represent us and we would like to obtain our file from our old attorney so our new attorney can review our legal history. Do we have a right to our file? If so, how should we obtain it from our old attorney?
Your nonprofit has a right to its file. The file includes valuable information about your nonprofit, such as its formation paperwork, 501(c)(3) exemption application, contracts drafted or reviewed for your nonprofit, and information or even court paperwork about disputes. The information in the file is considered your nonprofit’s property, so it’s important to retrieve that property once the relationship with the attorney is severed.
A client’s file can contain a variety of information, from notes the attorney took during meetings to the final product. Your nonprofit’s attorney should have copies of everything done on your nonprofit’s behalf, but the attorney may also have originals, such as your nonprofit’s original Articles of Incorporation or Federal Employee Identification Number, both of which are necessary documents your nonprofit needs in order to do business. These originals make it even more important to obtain the file as quickly as possible.
Each state’s rules are different on what the attorney is required to hand over to a client.
In some states, an attorney is required to hand over the final work product only. This includes any final documentation that the attorney prepared for your nonprofit, such as bylaws, contracts, and the finalized exemption application. In other states, the attorney is required to turn over the final documentation, as well as drafts of that documentation and any materials used to prepare the documentation.
An attorney is not always required to turn over everything. For example, an attorney may jot down notes on a legal theory or what needs to be researched for your nonprofit’s case or matter. Some states, such as Utah and Colorado, may consider these internal notes or an attorney’s work product to belong to the attorney, not the client.
The state where your nonprofit’s attorney is licensed will have rules that govern the materials that the attorney is required to provide to your nonprofit as part of its file. If there is any doubt as to what should be included in the file you receive, contact your local bar association for advice.
The rules governing payment will vary from state to state. In most states, your nonprofit will not have to pay for its file unless agreed to beforehand. Your nonprofit should review the retainer agreement it signed with the attorney to see whether it’s stated there who will pay for expenses associated with copying and sending the file. If it’s not stated in the agreement, the attorney should be the one who bears the cost.
If your nonprofit is responsible for the costs, it’s possible to request an electronic version, rather than pay for paper copies. Many attorneys keep electronic files and can send the file either via email, or by copying the file onto a memory stick and holding it for pick up. If your nonprofit accepts its file via email, it’s important to note possible security risks in transmitting such information electronically.
Sometimes, the attorney client relationship does not end well. If that's the case, your nonprofit may be uncomfortable contacting its former attorney. One good option is for your nonprofit’s new attorney to request the file. Your nonprofit will need to provide written permission for the new attorney to obtain the file and to discuss any legal issues with the former attorney.
If your nonprofit is comfortable obtaining its file on its own, the first step is to call the attorney and request a copy of the file. If your nonprofit needs the file by a certain date, for example, if your nonprofit is in the middle of a dispute, make sure to tell the attorney so he or she knows that time is of the essence. To speed up the process, offer to pick up the file, or request an electronic version.
If the attorney doesn’t respond to your phone call, write a letter asking for the file. Again, state whether time is of the essence. The letter should be sent via certified mail (or some other delivery system with a tracking method) so that your nonprofit receives verification that the attorney got the request.
If, within a reasonable time after receiving the letter, the attorney still hasn’t responded, it’s time to contact your state’s bar association to file a complaint. Attorneys have rules they have to follow, including responding to client requests and making the client’s file available. Failure to follow these rules can land the attorney in hot water, such as disciplinary proceedings.
When your nonprofit receives its file from its attorney, be sure to make a copy of everything in it before giving it to the new attorney. In addition, when working with the new attorney, make copies of everything. That way, if your nonprofit finds itself working with another attorney in the future, it will already have all the necessary information on hand.