Comments on: Give Me the Darn File!

By: Mark Bennett

Mark Bennett — Wed, 13 Jun 2007 22:22:00 +0000

Thanks for the comments. A court order to retun the file is a good idea.

By: Bill

Bill — Wed, 13 Jun 2007 05:26:00 +0000

I have had some luck with asking the court to order a former attorney to turn over a file to me. Then there is, at least, a threat of contempt. Usually, a lawyer doesn’t want to make the court angry. However, the court may not have the authority to actually order a non-party to do anything. My argument is that the court has the right to govern the practice of attorneys before it. Fortunately, I have never had to go any further than getting the order.

By: Gideon

Gideon — Wed, 13 Jun 2007 00:25:00 +0000

It is inexcusable. When I represent clients in habeas corpus petitions, I run into this problem very frequently.

We don't need a motion here; simply a copy of an appearance and a release from the client. Despite that, it sometimes takes predecessor counsel upwards of a year to hand over the file. A YEAR!

Then, you should see some of the things that pass for "files".

By: Mark Bennett

Mark Bennett — Sat, 09 Jun 2007 16:10:00 +0000

Mark,

Thanks for the comments. You're right -- I shouldn't rely on his notes -- but he obtained medical records on the client that I may not be able to get before trial.

The prior lawyer has been unresponsive to the client's requests for the file and, indeed, to all attempts by the client to contact him . . . which may have something to do with why I was hired.

I think a lawyer is on thin ice if he doesn't return the client's file to the client via the client's new counsel on request. You're not suggesting that my request doesn't obligate the lawyer to return the file?

By: Mark

Mark — Sat, 09 Jun 2007 15:54:00 +0000

I might add what I do….I send the client after the file, I instruct them to fetch the file and whatever refunds he/she can get from their former counsel to me. Be patient, take Matt’s advice, use it to buy time if you must, but really it should not be that difficult. p.s. that rule does not apply to you, unless you are “the client”. The client has the property interest in the file that the courts recognize.

By: Mark

Mark — Sat, 09 Jun 2007 15:45:00 +0000

I would make my own notes, since this previous counsel is obviously inept – I would be just as inept for relying on his notes. Possession is 9/10ths after all, so if let him keep them…, don’t ask me what I think about the disciplinary rules – they have no place in the law – pure politics.

By: Matthew

Matthew — Fri, 08 Jun 2007 14:39:00 +0000

File for a continuance. Raise every Sixth Amendment problem this lawyer’s representation has caused; preserve for appeal.