It is not uncommon for clients to request a copy of their file from their attorneys. Sometimes, the situation in which such a request is made is a matter of completing the client's records; other times, the client may be dissatisfied with the representation or the fee and is seeking an opportunity to review the attorney's work. If the demand for production comes in the form of a subpoena from a third party, there can be additional stakes for the attorney's timely and proper compliance.

Regardless of the reason, upon such a request attorneys are faced with whether and what to produce from the so-called client file. A typical client file may have copies of correspondence and pleadings, but it can also have nonpublic drafts, outlines, memoranda, research and internal communications. Some attorneys also place their handwritten notes inside the client file.

The work product doctrine is codified in Rule 192.5 of the Texas Rules of Civil Procedure. The rule defines work product to comprise communications made in anticipation of litigation or for trial between or among a party and its representatives, but also can include other material or mental impressions.

In reviewing whether parties must turn over work product materials in the course of litigation, Texas courts generally apply a two-factor test to determine whether the document is prepared in anticipation of litigation. First, a reasonable person would have concluded from the totality of the circumstances surrounding the investigation that there was a substantial chance that litigation would commence. Second, the party resisting discovery believed in good faith that there was a substantial chance that litigation would ensue and conducted the investigation for the purpose of preparing for such litigation.

Although determining what is work product is not always a simple question, lawyers can consider these guidelines when responding to requests for the client file.

Prevent Accidental Waiver of the Work Product

Separate from the issue of whether clients are entitled to receive work product materials prepared by their attorneys, attorneys can separately take steps to avoid the accidental waiver of work product protection through the production of those materials to other third parties.

Although work product material can sometimes be protected through a joint defense or common interest agreement, whereby otherwise-protected materials can be shared with third parties without risk of waiver, in other circumstances, sharing work product materials may result in a waiver. Indeed, if the work product has been disclosed improperly or without the appropriate safeguards, it can be difficult to prevent it from being used against the client or from being more widely disclosed. Thus, many attorneys will take steps to prevent the inadvertent disclosure of work product materials.

Determine Whether the Work Product is Core Work Product or Other Work Product

A first step attorneys can consider in reviewing the boundaries of the client file is determining what type of work product is at issue. Rule 192.5(b) provides different levels of protection in discovery for core work product versus other work product. These categories are also commonly referred to as opinion or general work product.

Core work product is almost never discoverable. It includes the attorney's or attorney's representatives' mental impressions, opinions, conclusion, or legal theories.

Other work product, however, is discoverable if the party requesting it is able to show that it has substantial need of the materials in the preparation of their case and that they would be unable to obtain the substantial equivalent by other means without undue hardship.

When a client requests their file, determining whether that file should include work product information is a complicated issue. One federal court to address this issue considered an attorney's duty, as an agent and fiduciary, to act in good faith and not deceive or conceal things from a client. Resolution Trust Corp. v. H.P.C., 128 F.R.D 647 (N.D. Tex. 1989). Although the Court concluded that the at-issue documents in a client file were not created in anticipation of litigation (and, thus, did not invoke work product protection), the Court suggested that production of a client file would typically involve turning over all materials. Other courts have suggested that work product created by an attorney generally belongs to the client. See In re George, 28 S.2.3d 511 (Tex. 2000).

Ethics Opinion 570 (2006) reviewed whether a lawyer may refuse a former client's request to turn over the lawyer's notes made during the representation. The opinion notes that outside the context of an attorney's lien, whether an attorney may withhold her or his written notes from a client depends on whether the attorney is subject to a court order prohibiting disclosure or if producing the materials would violate a duty owed to a third person or risk serious harm to the client.

Determine the Document's Author

Finally, deciding whether documents and material are work product may require an additional step of identifying the individual that drafted or created it.

In an ordinary representation, it is possible that only the attorney and client worked on or authored the documents housed in the file. However, more complex representations can result in many others weighing in. Generally speaking, the work product protection also extends to those materials prepared by other persons for an attorney's use or at an attorney's instruction. The question of whether documents created by experts are work product can be more complicated.

Under Tex. R. Civ. P. 192.3(e), for those nontestifying consulting experts whose opinions have not been reviewed by a testifying expert, their identity, mental impressions, and opinions are generally not discoverable. However, for those experts or consultants who will testify or whose opinions have been reviewed by a testifying expert, additional information is discoverable, including the underlying facts, the expert's mental impressions and opinions, and all documents provided to the expert.

Shari L. Klevens is a partner at Dentons and serves on the firm's US Board of Directors. She represents and advises lawyers and insurers on complex claims and is co-chair of Dentons' global insurance sector team.  Alanna Clair is a partner at Dentons and focuses on professional liability defense.  Shari and Alanna are co-authors of “The Lawyer's Handbook: Ethics Compliance and Claim Avoidance.”