b. The Entire File Approach: The Restatement of Law Governing Lawyers and Sage Realty The Restatement (Third) of Law Governing Lawyers section 46(2) embodies the entire file approach. It states: “On request, a lawyer must allow a client or former client to inspect and copy any document possessed by the lawyer relating to the representation, unless substantial grounds exist to refuse.”10 Comment c to section 46(2) makes it clear that the entire file does not necessarily have to be turned over because there are a few exceptions. The exceptions include when compliance would violate another lawyer’s duty to another client,11 and when the documents are “reasonably intended only for internal review,” such as: (1) when a memorandum discusses which lawyers should be involved in a case; (2) when the document discusses whether a lawyer should withdraw due to the client’s misconduct; and (3) when the document discusses the firm’s possible malpractice liability to the client.12 In Sage Realty Corp. v. Proskauer Rose Goetz & Mendelsohn L.L.P.,13 New York’s highest court built on section 46 of the
Restatement of Law Governing Lawyers and adopted the entire file approach.14 It explained that an attorney’s fiduciary relationship requires openness and conscientious disclosure.15 New York’s highest court could “discern no principled basis” where an attorney’s right to his or her work product in a client’s file would be in the attorney’s favor.16 Further, Sage Realty explained that when a dispute arises, the end-product approach unfairly puts the burden of justification on the client because the client needs to show a need for a work product document while the attorney is in possession of the work product documents to begin with.17 Sage Realty remains the leading case for this approach. c. Analysis Each approach has its advantages and disadvantages. Advantages of the end product approach include privacy for the lawyer in the sense that the lawyer’s work product may reflect weak ideas that are later rejected and other aspects of the case that turn out to be irrelevant in retrospect.18 Lawyers may also have a property interest in their work product—novel, unique programs, and files
that lawyers create and plan to reuse in the future that they do not want in the hands of their competitors.19 The disadvantage is simply that it might be placing the lawyer’s interests above those of the client. The advantages and disadvantages of the entire file approach are reciprocal to those of the end product approach. The lawyer’s loyalty and fiduciary duty are not questioned, but his property and privacy rights in the work product are cut short. IV. Potential ethics violations relating to Travis that Arkansas lawyers should be aware of a. Not returning the entire file or everything except your work product immediately once representation ends In spite of the demands of his client’s new attorney, the attorney in Travis did not return any documents to his client. The Arkansas Supreme Court stated that the attorney in Travis would have violated either approach because he did not return any files at all when representation ended. Arkansas law does not specify exactly how soon the documents must be returned, but the Travis court noted that an earlier case, Cortinez v.
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