Introduction:
A client has an absolute right to terminate representation of legal counsel. This is true regardless of any agreement entered into between lawyer and client. This does not mean that the client may breach the attorney client fee agreement by lack of payment or failure to cooperate. The attorney will have the right to seek payment in full. However, the attorney cannot force the client to continue to employ him or her. Note that in litigation, the attorney must also obtain consent of the court to withdraw from the case unless the client consents to the withdrawal and new counsel appears.
In certain types of cases, such as contingency cases, the right of an attorney to receive a portion of any recovery may remain, though the amount of payment may depend on how much actual work the first attorney has already committed to the case.
But as a case progresses the case file can become not only critical to the new attorney, but contain vital evidence, work product and discovery that is important to the continued success of the case. Most such files exist in the attorney’s office and at time evidence is kept in the attorney’s safe, or, just as often, on the computer hard drive of the attorney. The case files can become enormous as the years continue, and paper files can often take up an entire ten-foot shelf in a law office...or an immense amount of memory on a computer.
Assuming the relationship with the attorney ends, access and ownership of the case file is a central issue to be confronted by the attorney and client, especially if the relationship has become adversarial or if there is money owed to the attorney from the client. Further, the attorney may wish to keep portions or copies of the case file, concerned that down the road such documents may be required to defend against claims of negligence.
This article discusses the ethical and practical rules that apply to client files in the possession of the attorney.
The Basic Law:
The immediate law that applies is found in the Business and Professions Code applying to attorneys and in opinions rendered by the California State Bar. The opinions are formal documents that the Courts will enforce, and the attorneys must comply with if they wish to avoid Bar discipline.
Note that an attorney in a litigation before the court remains attorney of record with all the duties that imposes, including protecting the client’s interests, until a new attorney is formally admitted by the Court. Until that substitution of attorneys is allowed by the Court, the old attorney has the right to retain the file until his/her representation duties are at an end.
The essential opinion is as follows:
THE STATE BAR OF CALIFORNIA
STANDING COMMITTEE ON PROFESSIONAL RESPONSIBILITY AND CONDUCT
FORMAL OPINION NO. 1994-134
ISSUES:
1. What are an attorney's ethical obligations to prevent prejudice to the client after the attorney's employment in a litigation matter has been terminated, but before a substitution of counsel form has been filed?
2. Is it ethically permissible for an attorney whose employment has been terminated to withhold the file from the client or successor attorney until the client and the successor attorney have signed and filed or permitted the filing of a valid substitution of attorneys or the attorney has otherwise been permitted to withdraw by the tribunal before whom the matter is pending?
DIGEST:
1. An attorney remains the attorney of record until the substitution of counsel form is filed or the tribunal before whom the matter is pending has otherwise permitted counsel to withdraw, and therefore, has the same duties to act competently to protect the client from prejudice as the attorney did before discharge.
2. When a matter is pending before a tribunal, the attorney may retain possession and control of the file only to the extent necessary to represent the client competently and fulfill any outstanding obligations to the court arising out of that representation. The attorney may not, however, hold the file in order to obtain payment or other consideration from the client in exchange for the delivery of the file to the client. With very limited exceptions, the attorney must make the file available to the client or successor counsel and provide a copy thereof upon demand.
AUTHORITIES INTERPRETED:
Rules 3-110, 3-300, 3-500, 3-700(A), and 3-700(D) of the California Rules of Professional Conduct.
However, in non-litigation matters and in litigation matters once the substitution of attorneys is achieved, the attorney is required to surrender the “client file.” The Bar Formal Opinion states:
D. The Attorney is Required to Turn Over the File After Discharge and May Only Retain Possession of The File or Such Portions of the File as Are Necessary to Represent the Client's Interests Competently.
Upon the termination of an attorney's employment, rule 3-700(D) requires that, "[s]ubject to any protective order or non-disclosure agreement," the attorney must "promptly release to the client, at the request of the client, all the client papers and property." That rule further makes it clear that the client's "papers and property" include what has been thought of as the "client file," traditionally created and maintained by the attorney during the course of the representation. Specifically, rule 3-700(D) then defines "client papers and property" as including: "correspondence, pleadings, deposition transcripts, exhibits, physical evidence, expert's reports, and other items reasonably necessary to the client's representation, whether the client has paid for them or not; . . . . "
As the discussion thus far demonstrates, the attorney who has been "discharged" by the client, but who has not yet been "substituted out" of the case faces conflicting obligations. On the one hand, he or she is required to turn over the clients' "papers and property" upon termination,5 and, on the other hand, the attorney owes responsibilities to the "client," and, indeed, the Court, until a proper substitution is filed or the attorney is otherwise permitted to withdraw from the representation.
Under these circumstances, the question is not who owns the file, but who may possess and control the file until the attorney is relieved of his or her obligations to the client before the tribunal. In evaluating the requirements of rule 3-700(D), this Committee believes that the term "terminated" in that rule must be construed in light of rule 3-700(A)(1). The latter rule requires permission from a tribunal where its rules, such as Code of Civil Procedure section 284, require it. Of course, upon filing a substitution of attorneys showing the client's consent, such permission is deemed given pursuant to that statute. The Committee does not believe, however, that this necessarily answers the question posed at the outset of this paragraph.
Thus, although this Committee is of the opinion that the requirements of rule 3-700(D) are contingent upon the formalities of substitution and withdrawal set forth in Code of Civil Procedure section 284, the client's ownership of his or her papers nevertheless raises the question as to whether there is any earlier point at which the attorney must provide the client's papers and property or some portion thereof, to the client.
Rule 3-700(D)(1) simply provides that an attorney whose employment has been terminated shall promptly turn over to the client at the client's request, "all the client papers and property," and does not address this question.
Implied in the representation of the client is the attorney's need to create and maintain those "client papers and property." In order to represent the client competently and to prevent harm to the client, the attorney must, generally, have the file available. Moreover, as Rule 3-700(D)(1) recognizes, the attorney must also retain custody of those documents to which the client is not entitled to have access because of an applicable court order or some other legal reason.
Nevertheless, with those limited exceptions, the client is entitled to constant access to the file at all times during the representation. (See rule 3-500 and Bus. & Prof. Code; § 6068 (m) [attorney must "keep a client reasonably informed" and "promptly comply with reasonable requests for information"].) This obligation, together with the duty expressed in rule 3-700(A)(2) to take "reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client," unquestionably includes the client's right to demand that the file also be made available for inspection by prospective new counsel at all reasonable times.
Although, in many cases, an attorney may find it difficult, if not impossible, to meet his or her continuing obligations as an attorney of record without the file, in those cases where it is not necessary for the attorney to do so, such as where the case is dormant or successor counsel has begun to take substantial responsibility for the representation, the attorney may not withhold the file from the client or successor counsel merely to await the technicality of formal withdrawal from the action. Put another way, the reason for permitting the attorney to control and possess the client's papers and property is the attorney's duty to protect the client's interests and fulfill the attorney's obligations to the court. When those reasons do not justify the attorney maintaining possession of the file, the attorney may not do so. This includes portions of the file that may be unnecessary even if other portions remain necessary for the attorney's competent representation of the client.
In sum, the attorney may retain possession and control of the file if, and only if, it is necessary to do so in order to represent the client competently and fulfill any outstanding obligations to the court arising out of that representation. The attorney may not, however, hold the file hostage in order to obtain payment or other consideration from the client in exchange for the delivery of the file to the client. It is improper for an attorney to hide behind the obligation to act competently in order to use the file as leverage against a client.
Accordingly, this Committee believes that although an attorney may, in many cases, retain the file until formally relieved of his or her obligations as attorney of record, the question can only be answered in each case by focusing on the attorney's duty to act competently on the client's behalf and to fulfill any outstanding obligations to the court.
CONCLUSION
The client is entitled to discharge the attorney at any time, and the attorney is ethically obligated to turn over the file, or any part of it, upon the client's request once the attorney's employment has terminated, or at any earlier point where the attorney can do so without impairing his or her obligations to act competently on behalf of the client and to fulfill any outstanding obligations to the court. (Emphasis added.)
What is the “Client’s File?”
A common question that arises is what is a “client file” and whether an attorney must surrender with the file the “work product” of the attorney. This normally means research, strategic plans, investigative reports, etc. Again, the Bar has discussed this issue in detail:
The concept of a "client file" is not static, and its content will change depending upon circumstances. Certainly, all materials delivered by the client for use on behalf of the client belong to the client, unless the client intends otherwise. The Committee notes that the attorney's ethical responsibilities do not turn on the physical contents of the client's "case file," but rather on the ethical obligation on withdrawal to act reasonably to avoid reasonably foreseeable prejudice to his or her former client. (See Bar Assoc. of S.F. Formal Opn. No. 1990-1 [duty to disclose information, not necessarily just tangible materials].) (Emphasis added.)
Other opinions have also considered the possible contents of the client file:
1. Pleadings and other papers filed with the court which become part of the public record (see San Diego Cty. Bar Formal Opn. No. 1977-3);
2. Letters to the client, to opposing counsel, and to witnesses or third parties, and letters to the attorney from such individuals (see San Diego Cty. Bar Formal Opn. No. 1977-3 and Bar Assoc. of S.F. Formal Opn. No. 1984-1);
3. Investigative and research reports (both legal and factual) prepared by the attorney or at the attorney's direction (see San Diego Cty. Bar Formal Opn. No. 1977-3 and Bar Assoc. of S.F. Formal Opn. No. 1984-1); and
4. Discovery, reports, research notes, notes regarding witnesses, strategy and tactics, and similar items generated in the course of the representation. (See Bar Assoc. of S.F. Formal Opn. No. 1984-1.)
Of course, the client has the right to demand the return of his or her original papers and property at any time unless there is a court order or other specific legal proscription to the contrary. The attorney may copy any such papers essential to the representation.
And Who Pays If the Attorney Wants to Keep a Copy?
A discharged attorney who wants to keep a copy of the file normally must bear the copying expense, absent an agreement to the contrary with the client. See, e.g., San Diego County Bar Formal Opinion Number 1984-3; Bar Association of San Francisco Formal Opinion Number 1984-1; and San Diego County Bar Formal Opinion Number 1977-3.
However, where copying is done to enable the attorney to fulfill his or her obligations as attorney of record until the client and successor counsel relieve the attorney of those duties by filing the substitution, the attorney ethically may seek reimbursement from the client for those copying costs. However, the attorney cannot withhold the file until the copying costs are paid.
The discharged attorney's obligation under rule 3-700(D) is to release the client's paper and property promptly. While that obligation requires the attorney to act quickly, it does not necessarily mean the attorney may not retain the file long enough to copy it. The attorney must copy the file promptly and in a manner that does not prejudice the immediate needs of the client.
If a Client Terminates an Attorney and Does Not Request the File, Must the Attorney Retain the File?
FORMAL OPINION NO. 2001-157
ISSUES:
What ethical duties does an attorney have regarding the retention of former clients' files? Is the attorney ethically required to retain the files for any specific length of time following the completion of representation?
DIGEST:
As to original papers and other property received from a former client, including estate planning and other signed, original documents delivered under Probate Code section 710, the attorney's duties are governed by the law relating to deposits (bailments) or by the Probate Code. With respect to other "client papers and property" to which the former client is entitled under rule 3-700, absent a previous agreement, the attorney has an obligation to make reasonable efforts to obtain the former client's consent to any disposition that would prevent the former client's taking possession of the items. If, after reasonable efforts, the attorney is unable to locate the former client or obtain instructions, the attorney may destroy the items unless he or she has reason to believe (1) that preservation of the items is required by law, or (2) that destruction of the items would cause prejudice to the client, i.e., that the items are reasonably necessary to the client's legal representation. Since the "client papers and property" to which the former client is entitled may include a variety of items, the attorney may have an obligation to examine the file contents before the file is destroyed. No specific time period for retention of a particular item can be specified. Files in criminal matters should not be destroyed without the former client's consent while the former client is alive.
"Subject to any protective order or non-disclosure agreement, promptly release to the client, at the request of the client, all the client papers and property. 'Client papers and property' includes correspondence, pleadings, deposition transcripts, exhibits, physical evidence, expert's reports, and other items reasonably necessary to the client's representation, whether the client has paid for them or not."
The Committee agrees with Opinion 1996-1 that the attorney's obligation regarding former client files cannot be measured by a fixed time period. The foreseeability, for example, that an environmental or insurance dispute could arise several years after completion of a particular transaction suggests that the need to maintain client papers cannot be measured in all cases by a fixed time period.
Again, the attorney may have an obligation to examine the file contents before destruction. If the attorney is without personal knowledge of the contents of the file, it may be necessary to examine the file before concluding whether there is reason to believe that the client will foreseeably have need of the contents. If the attorney has reason to believe that the file does contain documents that the client will foreseeably need, the file must be examined and the notification to the client should point out the existence of any such documents. Destruction of closed files requires an exercise of judgment. Where an item has no intrinsic value, but the attorney fears that loss of the item will injure the former client, the item should be retained or the information contained therein preserved by microfilming or similar means. 7
Informal Opinion 1384 (1977) of the American Bar Association Committee on Ethics and Professional Responsibility states that while there is no specific time during which an attorney must preserve all files and beyond which he or she is free to destroy all files, "good common sense" should provide answers to most questions.
Among the considerations set forth in that opinion are:
Whether the information to be destroyed or discarded may still be useful in the assertion or defense of the client's position in a matter for which the statute of limitations has not expired; and
Whether the information is that which the client may need, has not previously been given to the client, and is not otherwise readily available to the client, and which the client may reasonably expect will be preserved by the attorney.
Because of the burden and expense of preserving former client files and the uncertainties that may attend their destruction if contact with the former client has been lost, attorneys handling discrete matters such as claims or litigation might consider including in their written fee agreements a provision that following termination of the representation the contents of the file may be destroyed without review at the end of a specified and reasonable period of time, unless the client has requested delivery of the files to the client. Such agreement would not be appropriate in all circumstances: for example, it would be inappropriate if the attorney were being retained to write a will or hold documents for safekeeping under the Probate Code or Civil Code.
Common Sense Approach:
A retired attorney commented in an e mail when asked about returning a client’s file, “It’s simple. The file belongs to the client. All of it. Including what you consider your own brilliant analysis or results of hard research. Whether paid for or not. They ask, you return it to them completely or you answer to the Bar. And if the client owes you money still, take them to court, don’t use the file for leverage. You don’t own it...”
From a client’s point of view, the Bar is the best place to ensure the return of the file and if you have retained new counsel, he or she should make clear to the prior attorney that the entire file is to be delivered. If you are in litigation and have no new counsel, understand that until you are substituted in pro per, the attorney may not be able to surrender the file to you until the court removes him or her from the case.