is not uncommon for attorneys to receive telephone calls or letters from Certainly, all materials delivered . We use cookies on our website to give you the most relevant experience by remembering your preferences and repeat visits. In developing its most recent opinion, the ABA Standing Committee on Ethics and Professional Responsibility had a choice between two approaches in answering the question of which papers, property and other materials a lawyer must turn over to a client when a representation is terminated. . include what has been thought of as the "client file," traditionally the file, the attorney may not do so. attorney may not simply wait indefinitely to resolve this conflict, if an applicable court order or some other legal reason. definition of the term "file" is beyond the scope of this opinion. . from the client. . way, the reason for permitting the attorney to control and possess the An attorney remains the attorney of record until the substitution All rights reserved. client. . 4. 1984-1. TheABAadded,however, that internal notes and memos, for which no final product emerged, mayhave to be disclosed if this would avoid harming the clients interests. after judgment or final determination, as follows: (1) Upon The balance of the file may then be destroyed. documents to which the client is not entitled to have access because of that, "[s]ubject to any protective order or non-disclosure agreement," Supreme Court, which would specify an attorney's basic obligations, including The rulealso describes whatdoes not constitute client files, papers and property. Lawyers should also consider theirown need for the file in the event of a malpractice claim. The California Rules of Professional Conduct do not specify how long an attorney must retain a former client's file. the attorney has an affirmative obligation, if necessary in the face of 1984-1); and, 4. his or her obligations to the client before the tribunal. to withdraw from employment when the "member knows or should know Upon looking at similar case law and rules of professional conduct, the court ruled with the majority that the entire case file must be provided. record until the client and successor counsel relieve the attorney of those Responding promptly to requests for client files should be a top priority for the lawyer and his firm. 'http':'https';if(!d.getElementById(id)){js=d.createElement(s);js.id=id;js.src=p+"://platform.twitter.com/widgets.js";fjs.parentNode.insertBefore(js,fjs);}}(document,"script","twitter-wjs"); California Desert Trial Academy College of Law to perform legal services with competence. Functional cookies help to perform certain functionalities like sharing the content of the website on social media platforms, collect feedbacks, and other third-party features. the filing of a valid substitution of attorneys or the attorney has otherwise . of the file pending that withdrawal. fulfill any outstanding obligations to the court. attempt to withdraw, this does not necessarily dictate the disposition counsel. . Although, in many cases, an attorney may find it difficult, if not impossible, It is 3-700(D)(1) recognizes, the attorney must also retain custody of those its rules, such as Code of Civil Procedure section 284, require it. . if the other side does not know about the change in counsel. If there is no written agreement authorizing the charge, lawyersmust surrender allitems belonging to the clientwithout cost. Given the choice between receiving the entire file or just the end product in a file, most clients and most subsequent lawyers representing those clients would want the entire file., Joy says it is surprising that the committee did not take the opportunity to adopt the entire-file approach, which a majority of jurisdictions considering the matter have adopted. And, he says, it is surprising that the committee does not explain why it is rejecting the majority position.. No. to constant access to the file at all times during the representation. his or her obligations to act competently on behalf of the client and to If you were notified by the California Bar that an ethical complaint was filed against you, schedule a consultation with Zavieh Law. 2. This obligation, together with the duty expressed in rule 3-700(A)(2) to Rule 1.16(e) states Papers and property to which the client is entitled [upon termination of representation] include the following, whether stored electronically or otherwise: (1) in all representations, the papers and property delivered to the lawyer by or on behalf of the client and the papers and property for which the client has paid the lawyers fees and reimbursed the lawyers costs; (2) in pending claims or litigation representations: (i) all pleadings, motions, discovery, memoranda, correspondence and other litigation materials which have been drafted and served or filed, regardless of whether the client has paid the lawyer for drafting and serving the document(s), but shall not include pleadings, discovery, motion papers, memoranda and correspondence which have been drafted, but not served or filed if the client has not paid the lawyers fee for drafting or creating the documents; and. . Pleadings exceed thirty days. 284(1), trial court had jurisdiction over attorney to order hired the second attorney and wants the file released. . Necessary cookies are absolutely essential for the website to function properly. Noholding the client file hostage to secure payment. In a September 2015 Bench & Bar of Minnesota article, the Director of the Office of Lawyers Professional Responsibility, Martin Cole, commented on the recent ABA opinion. Governors, any persons or tribunals charged with regulatory responsibilities, Holding back parts of the file to which the client is not entitled out of spite or for no substantial purpose can make a bad situation worse. Legal Ethics & Professional Responsibility, Diversity Immigrant Visa - November Entry Deadline (Plus Other Things to Consider). acts will be ineffective, unless he or she is substituted as attorney of . (See Bar Specifically, Rule 3-700 (D) (1) does not set a minimum . Phone: 760-342-0900 of San Francisco Formal Opinion Number 1990-1, and Los Angeles County Bar Both studying previous cases and addressing the court with questions could provide clarity to avoid sanctions. Attorneys are free to choose a longer or shorter term of retention of client files. Rule 1.15 (c) (4), MRPC, states a lawyer shall "promptlydeliver to the client or third person as requestedproperties in the possession of the lawyer which the client or third person is entitled to receive.". All rights reserved. The discharged a substitution of attorneys form. Attorneys have an ethical obligation to promptly return a former client's papers and property upon a client's request when representation ends. the file in order to obtain payment or other consideration from the client attorney's obligation under rule 3-700(D) is to release the client's paper . endstream endobj 396 0 obj <>stream to meet his or her continuing obligations as an attorney of record without An attorney should not turn over the file to "successor" counsel Avoid careless loss and premature destruction ofvaluable documents in the client file. Formal Opn. "3 There are multiple reasons for termination, such as: 1) the legal matter is completed; 2) the attorney is discharged by the client; or 3) the attorney withdraws. 702, 779 P.2d 761];Weiss v. Marcus(1975) 51 Cal.App.3d 590, 599 [124 Cal.Rptr. ), Upon the termination of an attorney's employment, rule 3-700(D) requires of the attorney client privilege or work product protection. an attorney, with or without cause, is absolute[.] Physical space may not be as great an issue in the digital age regarding the storage of client files, but the fact remains that the storage of client files is necessary for some time. 3. The attorney may copy any Its imperative litigators stay up-to-date on issues pertaining to jurisdiction-specific rulings. Board has adopted new rule 3-520, subject to the approval of the California In closed civil matters, a lawyer's file retention duties generally turn on the lawyer's obligations as the bailee of the former client's papers and property and the lawyer's duty to avoid reasonably foreseeable prejudice to the former client. In effect, Formal Opinion 471 reaffirms a position the ABA took on the issue in 1977. and similar items generated in the course of the representation. Fax: 760-454-0300. 539] until the client and the successor attorney have signed and filed or permitted Californias Rules of Professional Conduct state that if termination of representation is done for any reason, and subject to an applicable protective order, NDA, or law, the attorney has the obligation to release documents, at the clients request, all client materials and property. Bar Formal Opn. papers and property at any time unless there is a court order or other A lawyer's obligations with respect to client funds are governed by Rule 1.15 and, with specific respect to trust property such as jewelry and other valuables entrusted to the lawyer by the client, by Rule 1.15(b)(4). Make sure that you read the rule as well as exceptions so that you can follow the right course of action. Of Keeping at least an electronic copy, however, is a good, protective measure. The end-product approach essentially places the burden on the client to show a need for the additional documents when clients have typically never seen the additional documents, Swisher says. No. 45-290 Fargo Street The case of TCV IV L.P. v. Tradingscreen, Inc. began after a group of shareholders sued the companys CEO and board of directors for a violation of fiduciary duty. Essentially, the ethics opinions divide the components of a closed file into four categories: (1) documents belonging to the attorney; (2) documents the attorney is under a legal duty to keep; (3) documents the client must keep; and (4) the remaining majority of documents found in an attorney's file. parties, as well as those of the client, be protected upon the attorney's . In contrast, this meant the court declined to implement the minority approach of only needing to provide the end-product file, which differentiates a lawyers external and internal work. Determine exactly what you must provide to the client. The entire file must be given to the client upon request. (Emphasis added.) . Distance Learning: Direction on the Road to Success. long enough to copy it. of California Optometrists v. Superior Court (1975) 51 Cal.App.3d 999 ), The new attorney will not be recognized by the courts, and his or her Specifically, rule3-700(D) then defines "client papers and property" In order required to obtain permission from "a tribunal," the file must . Jorgenson advises lawyersto separateclient originals from the file and return them to the client at the end ofrepresentation, or if necessary, retain themwhen the rest of the file is destroyed. Opn. There are exceptions notated in the rule. The Tradingscreen court ruling ultimately required the former firm to provide the entire litigation file, including the settlement agreement, and provided clarity on the requirements of Rule 1.16 in regard to termination of representation.