Stephen Aguiar v. David Williams

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.

2021 VT 8

No. 2019-370

Stephen Aguiar Supreme Court

On Appeal from
v. Superior Court, Chittenden Unit,
Civil Division

David Williams September Term, 2020

Helen M. Toor, J.

Stephen Aguiar, Pro Se, Petersburg, Virginia, Plaintiff-Appellant.

William L. Gagnon of Heilmann, Ekman, Cooley & Gagnon, Inc., Burlington, for
Defendant-Appellee.

PRESENT: Reiber, C.J., Robinson, Eaton, Carroll, JJ., and Skoglund, J. (Ret.),
Specially Assigned

¶ 1. REIBER, C.J. This case involves a claim of conversion by a client against his

former attorney. Client Stephen Aguiar claims that attorney David Williams has failed to turn

over files related to plaintiff’s 2009 criminal prosecution. The civil division of the superior court

granted summary judgment in favor of attorney, and client now appeals. We affirm in part and

reverse in part.

¶ 2. The following information is drawn from the statements of facts submitted by the

parties in connection with attorney’s motion for summary judgment. In July 2009, the U.S. District

Court for the District of Vermont appointed attorney to represent client in his criminal prosecution

for conspiracy to distribute heroin and cocaine. By January 2011, the U.S. Attorney’s Office for

the District of Vermont (USAO) had provided attorney with more than 15,000 pages of discovery,
including documents, wiretapped recordings of thousands of telephone calls and related line

sheets, and hundreds of hours of recorded calls made by client and his co-defendants.

¶ 3. Attorney asserts that he provided copies of all discovery material produced by that

point in the case by the USAO, along with an iPod containing the wiretapped recordings, to client

in January 2011, when client was incarcerated at the Essex County, New York jail. Attorney

subsequently retrieved the iPod from client. Attorney provided a second copy of the materials to

client after jail officials destroyed client’s legal documents. Client agrees that attorney provided

him with some documents, but disputes that he ever received all of the discovery materials from

attorney.

¶ 4. In February 2011, the USAO agreed to provide attorney with statements and reports

of its witnesses and prospective witnesses (hereinafter referred to as Jencks material1) if attorney

agreed not to copy or disseminate them to any person, including client, and to return them to the

USAO after the litigation concluded. Attorney was permitted to review the material in person with

client. Attorney agreed to these terms. Attorney asserts that he allowed client to review the Jencks

material during trial, but client denies this.

¶ 5. In April 2011, client was tried and convicted of conspiracy to distribute heroin and

cocaine and five counts of distributing cocaine. He appealed his conviction. While the appeal was

pending, attorney sent client a thumb drive containing documents copied from discovery indexes

1-5, 7-9, 11-13, and 15, as well as documents, recorded telephone calls, and video and audio

recordings the USAO produced during discovery. Attorney sent client paper copies of documents

included in discovery index 14, which the USAO had produced as paper copies. Attorney did not

1
The Jencks Act bars the compelled disclosure of any statement or report made by a
prospective government witness until that witness has testified on direct examination at trial. 18
U.S.C. § 3500(a). After a witness has testified, the court shall, on motion of the defendant, order
the government to produce any statement of the witness that relates to the subject matter as to
which the witness has testified for the defendant’s “examination and use.” Id. § 3500(b); see also
F.R.Cr.P. 26.2 (providing procedure for disclosure of Jencks material).
2
send copies of the documents from discovery indexes 6 and 10 because he could not locate the

compact discs containing that material at that time.2 Attorney also did not send client copies of

the Jencks material, but sent client an index of that material. Although client agrees that attorney

sent him the above materials, he denies that they constituted a complete copy of his file.

¶ 6. Client’s conviction was affirmed by the federal appellate court in December 2013.

United States v. Aguiar, 737 F.3d 251, 265 (2d Cir. 2013). In March 2014, apparently in response

to another request from client, attorney informed client that he would not make another paper copy

of the file without a court order because he had already provided the discovery materials to client

on the thumb drive. In November 2014, attorney provided client with paper copies of all

correspondence in the file but refused to reproduce the discovery materials because he had already

provided client with copies. Attorney’s representation of client ended in December 2014.

¶ 7. In July 2015, client sent attorney copies of two Drug Enforcement Administration

subpoenas and requested that attorney send him all materials attorney produced in response to

those subpoenas. Attorney responded that he had already provided client with copies of everything

in his file except for the Jencks materials. In August 2015, client asked attorney to send him all

paper documents and compact discs that attorney had in his files. Attorney responded that he had

already sent client what he had. Attorney subsequently wrote to client and informed him that he

would not make another copy of the file. Attorney advised client to contact the USAO to request

the Jencks material.

¶ 8. Client filed a complaint with the Office of Disciplinary Counsel in September 2015,

alleging that attorney committed unprofessional conduct because he did not provide client with

paper and electronic copies of documents he received as discovery from the USAO. Bar counsel

determined that attorney did provide client with a copy of the file and that the Rules of Professional

2
During discovery in this case, attorney provided client with hard copies of the documents
from discovery index 6 and a DVD containing recorded telephone calls copied from discovery
index 10.
3
Conduct did not require him to provide another copy. Bar counsel noted that attorney had informed

client that he would make the file available for inspection by anyone authorized by client and

suggested that client accept the offer. Bar counsel closed the complaint and did not refer it for

disciplinary action.

¶ 9. In December 2018, client filed this action in the civil division of the superior court

alleging that attorney had converted his files. He sought an order declaring that he was the owner

of the files and directing attorney to turn over all files related to his representation. Attorney

moved for summary judgment, arguing that it was undisputed that attorney had already provided

client with copies of everything that he was allowed to disclose. Client denied that he had been

provided with copies of everything, asserting that attorney had never provided him with trial

exhibits. He also argued that he was entitled to the paper copy of the discovery file that attorney

allegedly created for use at trial, the Jencks material, and the iPod on which attorney had stored

the audio recordings.

¶ 10. The trial court concluded that attorney had complied with his obligation to allow

client to copy and inspect his files relating to client. It held that attorney had substantial grounds

to refuse to produce copies of the Jencks material because of his agreement with the USAO. The

trial court held that client was not entitled to attorney’s original files or the iPod. It therefore

granted summary judgment to attorney. Client moved for reconsideration, arguing that he owned

the paper copy of the discovery file and the iPod and needed these materials because he was

otherwise unable to access the digital materials that attorney had provided; that he had never

received the trial exhibits; and that he was entitled to the Jencks material. The court denied the

motion. Client then filed this appeal.

¶ 11. On appeal, client argues that the trial court erred in granting summary judgment to

attorney because client owns the original paper copy of the discovery file in attorney’s possession

4
and attorney has refused to turn it over.3 He claims that he was entitled to receive the Jencks

material and trial exhibits and attorney has never provided those documents. Client also claims

that he owns the iPod that attorney purchased so client could listen to recorded calls. Attorney

argues that he was only required to give client an opportunity to inspect and copy the file, and that

he has complied with this obligation several times over.

¶ 12. We review a decision granting summary judgment without deference, using the

same standard as the trial court. Clayton v. Unsworth, 2010 VT 84, ¶ 15, 188 Vt. 432, 8 A.3d

1066. Summary judgment is appropriate if “the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.” V.R.C.P. 56(a).

In considering whether there is a genuine dispute as to any material fact, “we will accept as true

all allegations made in opposition to the motion for summary judgment, so long as they are

supported by admissible evidence.” Fritzeen v. Gravel, 2003 VT 54, ¶ 7, 175 Vt. 537, 830 A.2d

49 (mem.).

¶ 13. We hold that client owns the entire contents of the file, subject to certain exceptions.

We agree with the trial court that attorney had substantial grounds to refuse to disclose the Jencks

materials to client and that client has failed to demonstrate an ownership interest in the iPod.

However, we conclude that summary judgment was premature regarding two issues: whether client

was entitled to a paper copy of the discovery file that attorney allegedly created for use at trial, and

whether client has been provided with certain trial exhibits. We therefore reverse and remand for

further proceedings on those issues.

3
In his appellate brief, client refers to what he is seeking as his “complete legal file.”
However, client’s statement of facts submitted in opposition to summary judgment, as well as his
motion for reconsideration below, make clear that he is seeking access to a printed copy of his
discovery file that attorney allegedly created for use at trial. Accordingly, we focus our analysis
on those materials.
5
I. Law Regarding Ownership of Client’s File

¶ 14. To prevail on a conversion claim, the plaintiff must show that he or she owns

property and “that another has appropriated the property to that party’s own use and beneficial

enjoyment, has exercised dominion over it in exclusion and defiance of the owner’s right, or has

withheld possession from the owner under a claim of title inconsistent with the owner’s title.” P.F.

Jurgs & Co. v. O’Brien, 160 Vt. 294, 299, 629 A.2d 325, 328 (1993). Conversion may also be

established if the defendant refused to return the owner’s property when the owner demanded it.

Id. at 299, 629 A.2d at 328-29. Here, client asserts that he owns the entire contents of the file in

attorney’s possession, and that attorney has converted his property by refusing to turn over a paper

discovery file, the Jencks material, the iPod, and trial exhibits.

¶ 15. This Court has not previously had occasion to consider the rights of a client to case

files created or maintained by an attorney in the course of representing that client. We begin our

analysis by looking to the Vermont Rules of Professional Conduct, which, although they are “not

designed to be a basis for civil liability,” provide useful guidance when considering issues that

arise within the attorney-client relationship. See V.R.Pr.C. Scope § 20. Rule 1.16 states that

“[u]pon termination of representation, a lawyer shall take steps to the extent reasonably practicable

to protect a client’s interests, such as . . . surrendering papers and property to which the client is

entitled,” although “[t]he lawyer may retain papers relating to the client to the extent permitted by

other law.” V.R.Pr.C. 1.16(d). Similarly, Rule 1.15 provides that “[e]xcept as stated in this rule

or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to

the client or third person any funds or other property that the client or third person is entitled to

receive.” V.R.Pr.C. 1.15(d). Neither rule specifies precisely what papers or property belong to

the client.

¶ 16. The majority of jurisdictions to consider this question have concluded that “once

the attorney-client relationship has ended, the client’s case files are the property of the client and

6
should be turned over” upon request, unless substantial grounds exist for the attorney to refuse

disclosure. Averill v. Cox, 761 A.2d 1083, 1092 (N.H. 2000); see Iowa Supreme Court Attorney

Disciplinary Bd. v. Gottschalk, 729 N.W.2d 812, 819-20 (Iowa 2007) (adopting majority approach

requiring attorney to turn over entire file, subject to certain exceptions); Matter of Cupples, 952

S.W.2d 226, 234 (Mo. 1997) (“The client’s files belong to the client, not to the attorney

representing the client.”); Sage Realty Corp. v. Proskauer Rose Goetz & Mendelsohn L.L.P., 689

N.E.2d 879, 881 (N.Y. 1997) (collecting cases and state bar ethics opinions indicating that client

is entitled to “full access to the entire attorney’s file on a represented matter with narrow

exceptions”).4

¶ 17. Section 46 of the Restatement (Third) of the Law Governing Lawyers adopts this

approach, stating that a lawyer must deliver to a client or former client “at an appropriate time and

in any event promptly after the representation ends, such originals and copies of other documents

possessed by the lawyer relating to the representation as the client or former client reasonably

needs,” unless “substantial grounds exist for refusing to make delivery.” Restatement (Third) of

the Law Governing Lawyers § 46(3) (2000). Comment c to § 46 clarifies that “[t]hat right extends

to documents placed in the lawyer’s possession as well as to documents produced by the lawyer.”

Id. cmt. c.

4
Some jurisdictions hold that the client is only entitled to “end product” documents, with
work product documents leading to the creation of those end product documents remaining the
property of the attorney. Sage Realty Corp., 689 N.E.2d at 881 (collecting cases). In a 1999 ethics
opinion, the Vermont Bar Association appears to have adopted this approach. See Vt. Bar Ass’n
Advisory Ethics Op. 99-07, https://www.vtbar.org/UserFiles/files/Webpages/Attorney%20Res
ources/aeopinions/Advisory%20Ethics%20Opinions/Liens%20Attorney/99-07.pdf [https://perma
.cc/8R6B-Z4F5] (stating that on termination of representation, attorney must turn over property
delivered to attorney by client, “end product” of attorney’s work, and all other material which is
useful to client in fully benefiting from services of attorney). We note that “[b]ecause even under
the majority rule a lawyer may withhold some non-end product documents (e.g., internal
memoranda discussing assignment of lawyers, whether the lawyer must withdraw, or possible
malpractice liability; or private notes), the differences between the majority and minority rules
may not be substantial.” In re ANR Advance Transp. Co., Inc., 302 B.R. 607, 614 (E.D. Wis.
2003) (citation omitted). We need not address those differences here because attorney does not
seek to withhold any work product documents in this case.
7
¶ 18. The Restatement identifies certain situations when the lawyer may refuse to turn

over documents, such as “when compliance would violate the lawyer’s duty to another.” Id. The

lawyer may also refuse to disclose “certain law-firm documents reasonably intended only for

internal review, such as a memorandum discussing which lawyers in the firm should be assigned

to a case, whether a lawyer must withdraw because of the client’s misconduct, or the firm’s

possible malpractice liability to the client.” Id.

¶ 19. Comment d to section 46 clarifies that it is not necessary for a lawyer to turn over

all original documents in every case:

Even without a client’s request or the discovery order of a tribunal,
a lawyer must voluntarily furnish originals or copies of such
documents as a client reasonably needs in the circumstances. In
complying with that standard, the lawyer should consider such
matters as the client’s expressed concerns, the client’s possible
needs, customary practice, the number of documents, the client’s
storage facilities, and whether the documents originally came from
the client. The client should have an original of documents such as
contracts, while a copy will suffice for such documents as legal
memoranda and court opinions. Except under extraordinary
circumstances—for example, when a client retained a lawyer to
recover and destroy a confidential letter—a lawyer may keep copies
of documents when furnished to a client.

Id. cmt. d.

¶ 20. We agree with the majority approach as set forth in the Restatement, and conclude

that a client’s entire file, with narrow exceptions as identified in § 46, belongs to the client and

upon request, should be turned over to the client upon termination of representation. This approach

is consistent with an attorney’s ethical obligation of open communication with the client. See Sage

Realty Corp., 689 N.E.2d at 882 (“Among the duties of an attorney as a fiduciary and agent of the

client are those of openness and conscientious disclosure.”); V.R.Pr.C. 1.4(a) (requiring lawyer to

keep client reasonably informed and to promptly comply with reasonable requests for

information). Accordingly, we reject attorney’s claim that he was only obligated to provide client

an opportunity to inspect and copy the file. Under the Restatement approach and the majority rule,

8
where a client so requests, an attorney is obligated to turn over the contents of the file to the client

promptly upon termination of representation, unless substantial grounds exist to refuse the request.

We therefore consider whether the undisputed facts demonstrate that attorney met this obligation.

II. Whether Client Received Materials to Which He Was Entitled

¶ 21. Client maintains that he has not received the entire file in attorney’s possession.

Specifically, he asserts that he is entitled to receive, and attorney has refused to turn over, (1) the

complete paper copy of his discovery file created by attorney for use at trial; (2) the Jencks material

provided to attorney under his agreement with the USAO; (3) an iPod purchased by attorney, for

which he was reimbursed by the federal court; and (4) trial exhibits provided to attorney by the

USAO. We address each category of material in turn.

1. Paper Copy of Discovery File

¶ 22. Client asserts that attorney created a paper copy of the entire discovery file—

apparently including some materials that were originally produced in digital format—for use at

trial. He argues that he owns these paper printouts because they were created for his benefit, and

needs them because, due to his incarceration, it is difficult or impossible for him to access the

materials in digital form.

¶ 23. The trial court granted summary judgment on this issue because attorney had

previously provided copies, some paper and some digital, of the discovery materials, and client

had not demonstrated that there were any “original” documents, such as a will or a deed, that he

reasonably needed. As the court noted, in many cases it is sufficient for an attorney to provide a

copy of a document in a client’s file. See Restatement (Third) of the Law Governing Lawyers

§ 46 cmt. d. To the extent that client’s conversion claim is based on attorney’s failure to turn over

“originals,” we agree with the trial court that he has not demonstrated that there are any such

originals that it is important for him to have. See id.

9
¶ 24. However, client’s claim regarding the discovery documents poses a different

question that the trial court did not directly address: whether attorney is entitled to dictate the

format in which client receives the contents of the file. We conclude that where an attorney has

maintained the client’s file in a certain format, the client is generally entitled to receive the file in

that format unless the parties agree otherwise. Comment c to § 46 of the Restatement explains that

a client is entitled to “retrieve documents in possession of a lawyer relating to representation of

the client,” as well as to inspect and copy such documents. Restatement (Third) of the Law

Governing Lawyers § 46(3) cmt. c. While a lawyer may deny a client’s request to retrieve, inspect,

or copy documents in certain limited circumstances, such as when compliance would violate the

lawyer’s duty to another, “[o]rdinarily . . . what will be useful to the client is for the client to

decide.” Id. Separately, comment d states, “Except under extraordinary circumstances . . . a

lawyer may keep copies of documents when furnished to a client.” Id. cmt. d. In our view, these

provisions support the conclusion that when a client requests documents from the file, generally

the client is entitled to receive those documents in the format in which they were maintained by

attorney if the client so desires. The attorney is entitled to keep copies in a different format for the

attorney’s records, but cannot insist that the client accept that format in lieu of the original format.5

¶ 25. We stress that the above ruling is focused solely on the format of documents, not

their contents. Whether a client is entitled generally to receive documents in the format maintained

by the attorney is a separate question from whether the client is entitled to “originals” or whether

an attorney has substantial grounds to refuse delivery of certain documents. As the trial court

found, client has not demonstrated that he is entitled to the “original” paper printouts that are

allegedly in attorney’s possession (which themselves would seem to be copies); another paper

5
Similarly, the client is not entitled to receive documents in a different format than
originally maintained if the attorney does not agree to provide them in that format. We note that
the question of who is responsible for copying and mailing the file is not before us in this case.

10
copy may suffice. Moreover, as mentioned above and discussed further below, an attorney may

deny a client’s request to retrieve, inspect, or copy documents under certain circumstances.

¶ 26. Here, client asserted in his affidavit that attorney printed a paper copy of the entire

discovery file, including some or all of the digital materials. He argues that he reasonably needs a

paper copy of those materials due to his incarceration. If found to be true, these facts are sufficient

to demonstrate that client is entitled to have a paper copy, subject to the exceptions discussed

elsewhere in this opinion. We therefore vacate the trial court’s award of summary judgment on

this issue and remand for further proceedings consistent with this opinion.

2. Jencks Material

¶ 27. The Jencks Act bars the compelled disclosure of any statement or report made by a

prospective government witness in a federal criminal prosecution until that witness has testified

on direct examination at trial. 18 U.S.C. § 3500(a). After a witness has testified, the court, on

motion by the defendant, shall order the government to produce any statement of the witness in

the possession of the government that relates to the subject matter as to which the witness has

testified, for the defendant’s “examination and use” at trial. Id. § 3500(b); see also F.R.Cr.P. 26.2

(setting forth procedure for requesting witness statements and clarifying that production and use

occur at trial). The Jencks Act codified the right recognized in Jencks v. United States, in which

the U.S. Supreme Court held that a defendant was entitled to an order directing the government

“to produce for inspection” all reports of witnesses relating to their testimony at trial. 353 U.S.

657, 668-69 (1957).

¶ 28. The Jencks decision, Jencks Act, and Federal Rule of Criminal Procedure 26.2 give

defendants a limited right to inspect witness statements. They “do[] not give defendants a property

interest in such statements, or require the multiplication of copies of internal prosecution notes or

reports for whatever use the defendants choose to make of them.” United States v. Garcia, 406 F.

Supp. 2d 304, 305 (S.D.N.Y. 2005). The federal government frequently seeks and obtains

11
protective orders prohibiting criminal defendants from retaining copies of Jencks materials

because such information may be disseminated within prisons, endangering the cooperating

witnesses who are identified in those materials. See id. at 306 (explaining rationale for protective

order prohibiting copying and dissemination of Jencks materials and prohibiting defendants from

taking such materials into prison facilities); see also United States v. Mitchell, No. 1:15-CR-

00040-JAW-3, 2016 WL 7076991, at *4 (D. Me. Dec. 5, 2016) (granting protective order

prohibiting defense counsel from copying Jencks materials and permitting defendant to review

materials only in presence of counsel); United States v. Guerrero, No. 09 CR. 339, 2010 WL

1506548, at *12-13 (S.D.N.Y. Apr. 14, 2010) (same).

¶ 29. In this case, rather than seeking a protective order, the USAO agreed to provide the

Jencks material to attorney prior to trial under the condition that attorney not copy or disseminate

the materials to anyone including client, other than to review them with client in person. Attorney

was therefore obligated not to provide the Jencks material to client and was entitled to refuse

client’s requests for copies of those documents. See Restatement (Third) of the Law Governing

Lawyers § 46 cmt. c (“A lawyer may deny a client’s request to retrieve, inspect, or copy documents

when compliance would violate the lawyer’s duty to another . . . .”); see also Schmidt v. Kimberly-

Clark Corp., No. 09-C-0643, 2013 WL 989829, at *3 (E.D. Wis. Mar. 13, 2013) (holding client

not “entitled to copies of documents his attorneys received on condition that they would not

disclose [them] to others”). We agree with the trial court that attorney was entitled to judgment as

a matter of law on client’s claim that he converted the Jencks material.

¶ 30. Client argues that attorney’s agreement with the USAO was invalid and not binding

because it was made without his knowledge and was adverse to his interests, in violation of agency

principles and attorney’s ethical obligations. In general, a client is bound by the acts and

representations of his attorney, although the client retains “control over important decisions

affecting [the] client’s substantial rights.” New England Educ. Training Serv., Inc. v. Silver St.

12
P’ship, 148 Vt. 99, 101-02, 528 A.2d 1117, 1118-1119 (1987). Attorney’s agreement with the

USAO was a tactical decision that fell within attorney’s authority to manage the conduct of the

trial, and therefore did not require approval by client. See Taylor v. Illinois, 484 U.S. 400, 417-18

(1988) (“Although there are basic rights that the attorney cannot waive without the fully informed

and publicly acknowledged consent of the client, the lawyer has—and must have—full authority

to manage the conduct of the trial. The adversary process could not function effectively if every

tactical decision required client approval.” (footnote omitted)). The agreement did not affect

client’s substantial rights because client had no right to see the Jencks material until after the

government’s witnesses testified at trial, and no right to keep the material afterwards. There is no

evidence that the agreement harmed client. To the contrary, it arguably benefited his defense,

because it gave attorney more time to review and prepare a response to the expected testimony.

We therefore disagree with client’s argument that the agreement was invalid simply because

attorney did not consult him about it.

¶ 31. Client alternatively claims that he was entitled to receive the Jencks material as part

of discovery in this case. Client failed to preserve this claim by adequately raising it below. The

record shows that client filed a motion requesting discovery generally, which the court denied

because the parties had not yet attempted to resolve any dispute between themselves. Client then

served attorney with broad discovery requests. Attorney responded to these requests but refused

to disclose the Jencks material. Client did not file a motion to compel the disclosure of that

material or otherwise argue to the trial court that he was entitled to receive the Jencks material as

part of discovery. Because he failed to raise this argument with specificity and clarity before the

trial court, he has not preserved it for our review. See Bull v. Pinkham Eng’g Assocs. Inc., 170

Vt. 450, 459, 752 A.2d 26, 33 (2000) (“Contentions not raised or fairly presented to the trial court

are not preserved for appeal.”).

13
3. iPod

¶ 32. Client next asserts that he owns the iPod that attorney purchased so that client could

listen to recordings of wiretapped calls, because it was part of his file and attorney was reimbursed

by the court for purchasing it. Client has not pointed to any evidence or legal authority to support

his claim that he owns the device itself when it was paid for by the court. Client conceded at oral

argument that attorney subsequently provided him with copies of the wiretapped call recordings

that were contained on the iPod on another digital device. We therefore agree with the trial court

that attorney is entitled to summary judgment on this claim. Cf. Livingston v. Town of Hartford,

2009 VT 54, ¶ 18, 186 Vt. 547, 979 A.2d 459 (affirming summary judgment where plaintiff cited

no authority and provided no cogent legal theory to support claim that statute requiring town to

conduct hearing provided private right of action for money damages).

4. Trial Exhibits

¶ 33. Finally, we turn to client’s claim that he never received copies of his trial exhibits.

The trial court apparently overlooked this issue because it concluded, based on attorney’s

statement of facts, that attorney had previously provided to client everything except for the Jencks

materials. However, in a sworn affidavit filed in response to attorney’s motion for summary

judgment, client asserted that attorney had never turned over 162 trial exhibits that attorney

received from the USAO. Client’s affidavit was sufficient to create a genuine dispute of material

fact on this issue, making summary judgment premature.6 See V.R.C.P. 56(c) (stating that party

may demonstrate that fact is genuinely disputed by affidavit showing personal knowledge); see

also Stone v. Town of Irasburg, 2014 VT 43, ¶ 63, 196 Vt. 356, 98 A.3d 769 (reversing summary

6
In his brief, attorney argued that he gave client everything except the Jencks material,
including “the voluminous discovery produced by the government which contains all the exhibits
that were directly relevant to the Fourth Amendment issue [client] raised on appeal.” At oral
argument before this Court, attorney clarified that he did not give the original trial exhibits to client
because he did not retain them, but argued that the discovery materials contained the same
information. This fact is not in the record and therefore does not provide a basis for us to affirm
the court’s decision.
14
judgment where plaintiff’s affidavit showed important facts were in dispute). We must therefore

reverse and remand for further proceedings regarding the trial exhibits.

Reversed and remanded for further proceedings regarding the paper discovery file and trial
exhibits; otherwise, affirmed.

FOR THE COURT:

Chief Justice

¶ 34. ROBINSON, J., concurring in part, dissenting in part. I join the majority

opinion in its entirety—with the exception of ¶ 32. I part ways with respect to the perplexing issue

of the iPod. Though I acknowledge that it’s a close question, I conclude that the iPod belongs to

client. More important, I write separately to suggest that this is precisely the kind of case that

would have been better resolved through Vermont’s Professional Responsibility Program than a

civil suit for conversion.

¶ 35. With respect to the iPod, it is clear that client is entitled to the digital files in digital

format if that is his expressed need. The Court today holds that the client owns the file, and at the

conclusion of the representation, upon request, the attorney must generally provide the file to the

client in the format in which it was kept unless the client agrees otherwise. This logic supports

client’s position that he is entitled to the recordings in digital format; and my understanding is that

client has received those digital files on a thumb drive. The majority’s holding doesn’t resolve the

question whether client owns and is entitled to the device in which the attorney stored those digital

files.7

7
The majority is right that client cited no authority to support his claim to the device. But
the majority likewise cites no authority for its rejection of client’s claim, leaving us with no
analysis or arguments to support its conclusion concerning the iPod.
15
¶ 36. The iPod serves two purposes: It is the vessel in which the digital files are stored,

and it is the tool through which they are accessed. Insofar as it serves as a vessel for storing the

digital files, it is analogous to a file cabinet in which an attorney stores a client’s paper file. It is

generally owned by the attorney or law firm, and is dedicated to storing a client’s files for a period

of time. In that scenario, the client owns the files, but not the file cabinet. But what if the lawyer

purchases the file cabinet specifically for the purpose of storing the client’s files, attorney bills

client for the cabinet, and client pays for it? In that circumstance, doesn’t the client who paid for

the file cabinet own it? It would be counterintuitive to allow the attorney to keep the file cabinet

for the attorney’s own use in the face of a direct request from the client who paid for the cabinet.

Likewise, with the iPod.

¶ 37. Its status as a tool through which the files are accessed is even more significant.

An attorney may deliver digital files to a client on a thumb drive, but without the iPod or some

other tool for playing the digital files, a client cannot actually access the files. If a lawyer returns

the client’s file, but retains the iPod, the client doesn’t have the benefit of the complete file but

instead has to acquire or otherwise access a device to actually listen to the digital files. The case

for including the iPod as part of the client’s file is even stronger than the case for including the

filing cabinet.

¶ 38. The fact that client did not personally pay for the iPod in this case shouldn’t change

the analysis. It’s true that client didn’t personally pay for the iPod; but neither did attorney. In the

context of paying attorney’s legal bills on behalf of client, the court bought the iPod. But the court

paid attorney for client’s benefit, not for counsel’s benefit. It purchased the iPod specifically to

facilitate attorney’s representation and this client. For that reason, as between client and attorney,

it strikes me that client’s claim to ownership of the iPod is superior to attorney’s. Why shouldn’t

client get the digital files stored on a device from which client can directly review them, rather

than requiring client to accept a thumb drive, forcing him to subsequently find access to a device

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that can play the digital recordings from the thumb drive? (Attorney is, of course, free to keep

copies of the digital files on a thumb drive.) Moreover, differential treatment of criminal

defendants who rely on government-funded counsel to defend them runs afoul of the purpose of

the federal Criminal Justice Act. See, e.g., United States v. Henderson, 525 F.2d 247, 251 (5th

Cir. 1975) (noting “strong policy of [Criminal Justice Act] to furnish counsel and services to those

unable to procure them so as to place such criminal defendant in a nearly equal position with a

defendant who can pay”). For these reasons, as a matter of contract and property law, the client’s

case for ownership of the iPod is stronger than attorney’s.

¶ 39. Moreover, extrapolating from the principles in the Restatement that the lawyer is

generally required to return to client those documents the client “reasonably needs” unless

“substantial grounds exist for refusing to make delivery,” Restatement (Third) of the Law

Governing Lawyers § 46(3) (2000), and that “[o]rdinarily . . . what will be useful to the client is

for the client to decide,” id. cmt. c, this analysis favors client’s position as well. Client is

incarcerated. His ability to seek habeas corpus or other forms of relief on account of any infirmities

in his conviction depends on his access to his case file—including the recordings stored in the

iPod. If the thumb drive does not provide sufficiently useful access to the file—and client tells us

it does not—then client potentially faces obstacles of a constitutional magnitude.

¶ 40. All of this discussion highlights the incongruity of addressing these issues in the

context of a civil tort claim for conversion rather than through the Professional Responsibility

Program. The Professional Responsibility Program, as constituted at the time of the events at issue

here,8 was designed to, among other things, “resolve complaints against attorneys through fair and

8
The Court has recently amended Administrative Order 9. See Order Promulgating
Amendments to Administrative Order No. 9 (Nov. 2, 2020),
https://www.vermontjudiciary.org/sites/default/files/documents/PROMULGATED%20AO%209
%20Amendments%20-%20November%202020.pdf [https://perma.cc/8J6Q-B6YR]; see also
Emergency Order Extending Effective Date for Amendments to Administrative Order No. 9 (Jan.
25, 2021), https://www.vermontjudiciary.org/sites/default/files/documents/PROMULGATED
EmergencyExtensionofEffectiveDate%20AO%209%20%28002%29.pdf [https://perma.cc/4896-
17
prompt dispute resolution procedures.” A.O. 9, Purpose. To that end, when a client complains to

the Professional Responsibility Program, avenues exist for investigating the complaints and

resolving them through various nondisciplinary dispute resolution methods, including engagement

by Bar Counsel and referral to an Assistance Panel. A.O. 9, Rule 10.A, B. Moreover, the formal

disciplinary process provides not only a means of developing an evidentiary record in the face of

a factual dispute between client and lawyer, but a framework for addressing previously unresolved

questions of Vermont law concerning, for example, ownership of client files. A decision to deny

a complainant client access to the informal nondisciplinary dispute resolution processes, as well

as the more formal disciplinary process potentially available through the Professional

Responsibility Program, is subject to only limited review within the Professional Responsibility

Program. See In re Faignant, 2019 VT 29, ¶ 13, __ Vt. __, 212 A.3d 623 (mem.) (holding that

complainant lacked standing to petition Supreme Court for extraordinary relief to challenge Bar

Counsel’s decision to dismiss complaint). For that reason, complaints should be outright dismissed

only when they clearly have no basis in fact or law, and further investigation and consultation with

both lawyer and client is unlikely to move the conflict substantially closer to resolution.

¶ 41. For the above reasons, I concur in the majority’s analysis and mandate, except that

I dissent with respect to the iPod.

Associate Justice

MABB] (extending effective date to Apr. 1, 2021). This amendment does not eliminate the
objective of resolving disciplinary complaints against attorneys through fair and prompt dispute
resolution procedures. In this dissent, I describe the objectives of the Professional Responsibility
Program as described in the version of Administrative Order 9 in effect at the time of these events,
and still in effect as of the date of this decision.
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