Who Owns "Work Product" ? The Attorney or the Client?
By Henry S. David and Michael R. Dutton
Henry S. David is the proprietor of The David Firm®, which he founded after 33 years in Big Law. He is a commercial litigator, with a focus on creditors’ rights.
Michael R. Dutton is a summer law clerk at The David Firm®, working in the area of business litigation. He is currently studying law in Argentina, and is schedule to graduate from UCLA School of Law in 2017. In the past, Michael has worked with the Los Angeles County District Attorney’s Office, and as a research assistant with the Hugh and Hazel Darling Law Library.
A new client (the "Client") asks you to take over a matter from another law firm (the "Prior Law Firm"). For various reasons (such as time, the client’s money, and ethics against churning), you do not want to recreate the wheel, so you ask the Prior Law Firm for their entire file (paper and electronic, of course). They promptly send you what they claim is their whole file, but notably absent are any research files, research memos, or internal emails. When you ask why, they tell you that they "own" the work product, and hence such embodiments of work product are not part of the "client’s files," which is all they must turn over to the Client (whether or not the Client has paid them1). You need the entire file, including work product, not only to represent the Client effectively and efficiently in the matter being turned over to you, but to evaluate whether the Client may have a claim against the Prior Law Firm, which is subject to a short (one-year) statute of limitations.2 Is the Prior Law Firm within its rights to deny the Client access to the work product? Contrary to conventional wisdom, the answer is most likely no.