June 25 — A client cannot force its former counsel to turn over original papers or documents in the client's files because the client did not show that he gave the firm any original papers or that any originals in its possession are necessary for the client's representation, the Ohio Court of Appeals, Second District, ruled June 20.
Accordingly, the trial court was right to enter judgment for the firm in the client's action for replevin, conversion and breach of fiduciary duty, the court decided in an opinion by Michael T. Hall.
The former client, Paul Sacksteder, is pressing a malpractice suit against Pickrel, Schaeffer & Ebeling Co, L.P.A., which represented Sacksteder and his business for many years,
Sacksteder made a demand outside discovery in that litigation for the original documents and papers in Pickrel Schaeffer's case files. When the firm refused, Sacksteder filed this action seeking its original documents.
The trial judge suggested that the firm give Sacksteder copies of its case files, which it did. Also, the judge ordered that the originals would be kept at the offices of Pickrel Shaeffer's counsel and that copies could be used in place of originals at trial.
On appeal from summary judgment for the firm in the replevin action, the court concluded that “although Sacksteder has a right to documents or materials he has provided to the attorneys, and a right to information in and copies of other documents in his files, without expense, he does not have a right to the original papers or documents in Pickrel Schaeffer's case files.”
A client has the right to any original paper that he gave the lawyer because these are the client's personal property, the court said. There were no such documents in the case files here, it noted.
Moreover, the court said, a client has the right to any original paper or document that is reasonably necessary to the client's representation.
It grounded this proposition on Rule 1.16(d) of the Ohio Rules of Professional Conduct, which requires a lawyer who stops representing a client to take steps to protect the client's interests, one of which is “delivering to the client all papers and property to which the client is entitled.”
Rule 1.16(d) defines “client papers and property,” the court noted, as those items “reasonably necessary to the client's representation,” which “may include correspondence, pleadings, deposition transcripts, exhibits, physical evidence, [and] expert reports.”
It could be inferred from a comment to the rule, the court said, that it is the originals of the reasonably necessary items that must be returned. But here, there is no original paper or document that is demonstrated to be necessary to Sacksteder's representation, the court said.
Nor has Sacksteder shown that he either owns or has the immediate right to possess any other original paper or document in the case files, the court added.
With regard to documents that were created and stored electronically, the court noted that such materials have no single original. Under an Ohio evidence rule, the “original” of an electronic document is any printed copy, it pointed out.
Judges Mike Fain and Jeffrey M. Welbaum joined in Hall's opinion.
John J. Mueller LLC represented Sacksteder. Freund, Freeze & Arnold represented Pickrel, Schaeffer & Ebeling and individual defendants.
Copyright 2014, the American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.
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