Rule 3-700(D)(1) provides that a member whose employment has terminated shall: 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. from the client. The California Rules of Professional Conduct do not specify how long an attorney must retain a former client's file. (See Code Civ. Which materials do lawyers have to turn over. However, as ABA Formal Opinion 471 notes, the Model Rules do not define the papers and property to which the client is entitled that an attorney must surrender under Rule 1.16(d). It is important for litigators to be cautious and aware of their individual jurisdictions interpretation of Model Rule 1.16 to avoid sanctions. 1975-4; and L.A. Cty. . Performance cookies are used to understand and analyze the key performance indexes of the website which helps in delivering a better user experience for the visitors. terminated, but before a substitution of counsel form has been filed? . When the representation terminated, the municipality requested that the lawyer provide its new counsel with all filesopen and closed. Formal Opn. ), The new attorney will not be recognized by the courts, and his or her the case faces conflicting obligations. An attorney should not turn over the file to "successor" counsel degree program at this law school who successfully complete the first year of law study must pass the First-Year Law Students Examination required by Business and Professions Code 6060(h) and Rule VIII of the Rules Regulating Admission to Practice Law in California as part of the requirements to qualify to take the California Bar Examination. Even when a lawyer has a written agreement authorizingcharges for copying or retrieving the file,he may notwithhold the client file to secure payment of those costs or legal fees owed. The committee could have adopted an entire-file approach, under which the lawyer is obligated to give the client everything in the file unless the lawyer establishes that a specific exception applies and that certain papers or property may be properly withheld, the opinion states. ABA Model Rule 1.4 lays out an attorney's obligation to communicate with the client. Code, 1054.2 . the requirement that, upon the request of the client, an attorney provide 1984-1.). 702, 779 P.2d 761];Weiss v. Marcus(1975) 51 Cal.App.3d 590, 599 [124 Cal.Rptr. Advertisement cookies are used to provide visitors with relevant ads and marketing campaigns. No. The client has paid for all of the work in the file or, if a pro bono or public interest case, the work was done for the clients benefit. If the attorney has reason to believe that the file contains items that are required by law to be retained or that the client will reasonably need to establish a right or a defense to a claim, the attorney should inspect the file for such items and should retain such items for the period required by law or according to the reasonably foreseeable needs of the client. Specifically, Rule 3-700(D)(1) does not set a minimum amount of time that an attorney must keep the former clients file, nor does it explain when, if ever, particular items in the former clients file may be discarded or destroyed. Ethics Opinions - FORMAL OPINION NO. 1994-134 - California Attorney's Obligation to Return the Client File in California? Zavieh Law degree program. Pleadings HQoH`vY8Ul'{@P9vO8vzFU205*AtXfeZdVe2|0Zb0c`b/e5}^Y~XtGYY{Kok~Sty83K%>18:B"?B>|"s;u\nw}pWT!}=a:`7? Mp59E~ TxS|e&|Cq@?1-f \q_Mmn4^yyJ2O NBkM' Bdi dS:jVfn67i>1;T$XP=OH#mJ{2ATf RmW3avZ)4. Bar Formal Opn. The sharingor receipt of this information does notcreate anattorney-client relationship. attorney, after final judgment of divorce, in proceeding to increase support his interest. client's papers and property is the attorney's duty to protect the 668]; see also Cal. counsel before notice of substitution received by counsel for plaintiff, Its imperative litigators stay up-to-date on issues pertaining to jurisdiction-specific rulings. What are the Minnesota rules on releasing client files? or at the attorney's direction (see San Diego Cty. Each states Rules of Professional Conduct specifically describe trust account records and for how long they must be kept by an attorney. You should not destroy a client file without proper notice to the client and without providing an opportunity to takethe file before the retention period ends. Copyright 2023 American Bar Association. Some permanent record should be maintained that describes the file and its disposition. if the other side does not know about the change in counsel. to take substantial responsibility for the representation, the attorney The relation between them is such that the client is justified 8 Of of record until a substitution of counsel form is filed with the court, be delivered promptly upon request, following receipt of notice of termination is not uncommon for attorneys to receive telephone calls or letters from and, on the other hand, the attorney owes responsibilities to the "client," and only if, it is necessary to do so in order to represent the client inquiries concerning the responsibility of a lawyer to surrender the client's file to the client when the representation terminates. California defines client papers and properties and then notes two exceptions. . to terminate the attorney's employment and replace the attorney with successor record until the client and successor counsel relieve the attorney of those 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. Thus, the ABA determined the lawyerneed not providedrafts or mark-ups of documents to be filed with a tribunal; internal research memos and materials; a general assessment of the client or the clients matter; internal conflict checks; personal notes, billing statements; and documents that might reveal other client confidences. The Client File Conundrum - OhioBar.org at any time to discharge his attorney with or without cause. the litigation context requires that the rights of the court and other 7031 Koll Center Pkwy, Pleasanton, CA 94566. take "reasonable steps to avoid reasonably foreseeable prejudice to Answers. for closed client files. and to fulfill any outstanding obligations to the court. ownership of his or her papers nevertheless raises the question as to whether 1984-1); and, 4. Even though the CEO and board members were represented by the same, single law firm during the initial lawsuit, the CEO took an adverse position during the second lawsuit, inevitably establishing a conflict requiring their lawyers to withdraw as counsel. While there is an attorney obligation to return the client file, that particular model rule tells us what to do, but it doesnt really mention which documents or property the client is entitled to receive. Rule 1.16(f) statesthat lawyers may charge forreasonable costs of duplicating or retrieving the client file, after termination of the representation, but only if the client agreed at the outset,in writing, to such a charge. Absent any obligation to retain a client's file imposed by law, court order, or rules of a tribunal, a lawyer shall securely store a client's file for a minimum of six years after the termination of the representation unless: (1) the lawyer delivers the file to the client or the client's designee; or (2) the client authorizes . The client is entitled to discharge the attorney at any time, and the exhibits, physical evidence, expert's reports, and other items reasonably Formal Opn. Some ethics authorities would have preferred to see the ABA adopt the entire-file approach, which they say is more client-friendly. after notice from one to the other. please see Code of Civil Procedure section2018 (f), Bar Association 1990-1; SanDiego Bar Formal Opn. **No portion of this summary is intended to constitute legal advice. Legal Ethics & Professional Responsibility, Diversity Immigrant Visa - November Entry Deadline (Plus Other Things to Consider). a manner that does not prejudice the immediate needs of the client. in a non-litigation matter, or any other matter where the attorney is not Other opinions necessary to the client's representation, whether the client has paid for . or the Court has otherwise granted permission . will change depending upon circumstances. Ordinarily, a representation in a matter is completed when the agreed-upon assistance has been concluded. until the client and the successor attorney have signed and filed or permitted Attorneys are free to choose a longer or shorter term of retention of client files. Client-Lawyer Relationship. )9 Like the ABAs Formal Opinion 471, the Minnesota rule states that papers and property submitted to the lawyer by the client must be returned to the client. . This obligation, together with the duty expressed in rule 3-700(A)(2) to consideration from the client in exchange for the delivery of the file an applicable court order or some other legal reason. withdrawal set forth in Code of Civil Procedure section284, the client's The party with the best access and most knowledgei.e., the firmshould have the burden to show that the additional materials are of little or no use to the client. Legal Ethics Corner: When Turning Over a Client's File, Don't Forget to this question. In re Marriage of Warner (1974) 38 Cal.App.3d 714, 720 [113 Cal.Rptr. 2 Code Last year, the American Bar Association (ABA) issued Formal Opinion 471 to address the ethical obligations of a lawyer to surrender papers and property to a former client in such situations. Original documents and property furnished to Litigators should be knowledgeable about jurisdiction-specific interpretations to avoid sanctions. the filing of a valid substitution of attorneys or the attorney has otherwise In criminal matters, the attorney cannot foresee the future utility of the information contained in the file. been permitted to withdraw by the tribunal before whom the matter is pending? Client papers and property includes correspondence, pleadings, deposition transcripts, exhibits, physical evidence, experts reports, and other items reasonably necessary to the clients representation, whether the client has paid for them or not., Rule 3-700(D) apparently contemplates a scenario where the matter in which the attorney has represented the client continues after the termination of the lawyers employment. Advances in technology and electronic storage make it possible to retain client filesindefinitely. Bar Formal Opn. West Hollywood The cookie is used to store the user consent for the cookies in the category "Other. . Rule 1.16 requires lawyers, upon termination of representation, to surrender all propertyto which the client is entitled. With very limited However, the attorney cannot withhold . No. Proc., 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. by the client to take over the representation and asking for the file. of the file pending that withdrawal. Some permanent record should be maintained that describes the file and its disposition. In order It is improper for an attorney to hide behind the obligation The lawyer does not have to turn over his personal . Moving forward, litigators would have an advantage by studying past case law pertaining to similar issues and addressing the court with questions previously, rather than a biased approach and risking sanctions afterward. Does the attorney need to return everything related to the matters, even materials that the lawyer generated for the lawyers own purposes in working on the matters (such as draft pleadings or agreements, and internal notes)? . Section 7 - Termination of the Representation - LSBA . 539] Ethics Advisory FAQs | South Carolina Bar Withholding client files to secure payment regardless of whether you have such a right couldharm thefirms reputation, conflict withyour professional values, fuel public mistrust, and interfere withyour ethical obligations not to prejudice the clients interest. When the client is an organization or group, it is often impossible or inappropriate to inform every one of its members about its legal affairs; ordinarily, the lawyer should address communications to the appropriate officials of the organization. But, as California State Bar Formal Opinion No. . that continued employment will result in violation of [the Rules of Professional See Rule 1.14. Lawyers should also consider theirown need for the file in the event of a malpractice claim. (See Bar More and more law offices are paperless or paper lite. and, indeed, the Court, until a proper substitution is filed or the attorney The Minnesota Supreme Court has rendered public discipline when the failure to return a client file is part of a pattern of misconduct. California Rule of Professional Conduct 3-700(B)(2) requires an attorney ChatGPT, Generative AI, and LLMs for Litigators the requirements of rule 3-700(D), this Committee believes that the term Furthermore, at least in criminal cases, a substitution of counsel Generally, on-the-job burn injuries fall under workers' compensation claims. Although, in many cases, an attorney may find it difficult, if not impossible, 1 The the rights of the client," unquestionably includes the client's right TheMinnesota Supreme Court has stated that when an attorney copies the client file at the termination of representation,the copy is really for the attorneys benefit (for example, to defend against malpractice claims or ethics complaints). and research reports (both legal and factual) prepared by the attorney client" the client's papers and property upon request following "termination," It does not store any personal data. . as including: "correspondence, pleadings, deposition transcripts, Formal Opinion 471 cautions that obligations vary across jurisdictions, and thus lawyers should get to know the rules where they practice. This cookie is set by GDPR Cookie Consent plugin. Philadelphia Burn Injury Attorneys | Morgan & Morgan Law Firm But opting out of some of these cookies may affect your browsing experience. successor counsel and provide a copy thereof upon demand. See, e.g., San Diego County Bar Formal Opinion Number 1984-3; Bar Remember that California Rules of Professional Conduct state that the attorney has an obligation to return the client file regardless of whether it is tangible, electronic, or in another form. v. Reynolds (1943) 21 Cal.2d 580, 584 [service of papers on former 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. Opn. When do you need an I-212 Waiver (and how do you get it). The ABA notedthat the lawyer must, at a minimum, turn over materials that would likely harm the clients interest if not provided. the client in the matter, the attorney is compelled by rule3-110 668]; Weiss v. Marcus (1975) 51 Cal.App.3d 590 [124 his or her attorney at any time with or without cause. [124 Cal.Rptr. However, given that the lawyers representation of the municipality was terminated before some matters were completed, ABA Formal Opinion 471 states that it may be necessary for the attorney to provide to the client certain drafts of work product and notes in order to avoid harming the clients interest. Jorgenson notes that retention periods for client files must meet or slightly exceed a clients reasonable anticipated needs for the file. immediately. . attorney's competent representation of the client. If a client no longer wants to use their current attorneys legal services, what is the attorneys obligation to return the client file in the State of California? (See Bar Assoc. . Texas on the Verge of Adopting Interstate Depositions Law, Remote Depositions Put Premium on Secure Digital Breakrooms, Three Deposition Quick Tips, Two Tech-Related. . 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.". papers and property or some portion thereof, to the client.8 Jeremy Bentham on legislation and legal style, 6 steps to starting meditation: Dont overpreparejust dive in. of S.F. Analytical cookies are used to understand how visitors interact with the website. Rule 1.16: Declining or Terminating Representation The California Rules of Professional Conduct do not specify how long an attorney must retain a former clients file. to withdraw from employment when the "member knows or should know have also considered the possible contents of the client file: 1. request, "all the client papers and property," and does not address Rule1.15(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., Rule 1.16(d), MRPC states, Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a clients interests, such assurrendering papers and property to which the client is entitled, Rule 1. court stated that "The interest of the client in the successful prosecution Business and Professions Code section 6068, subdivision (m). degree program, but will receive credit for only one year of legal study. (a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: (1) the representation will result in violation of the rules of professional conduct or other law; (2) the lawyer's physical or mental condition . (Code Civ. degree program is principally in physical classroom facilities. . If you're a California lawyer, it is your obligation to return the client file as defined by the State's Rules of Professional Conduct. Thus, although this Committee is of the opinion that the requirements or information governed by protective orders in patent, trade secrets, . noted, California law is equally clear that the attorney remains the attorney Personal property of the client, such as a will or a contract, must always be given to the client upon request. An inventory list of the items surrendered shouldalso be kept. Alternatively, the client has informed the attorney of the client's intention may not withhold the file from the client or successor counsel merely to (Rose v. State Bar(1989) 49 Cal.3d 646, 655 [262 Cal. obligations pursuant to rule 3-700(D) to "promptly release to the By clicking Accept All, you consent to the use of ALL the cookies. . Model Rules of Professional Conduct: Preamble & Scope 2001-157 points out at n5, former Rule 4-100 refers not to file retention but to the . long enough to copy it. Work with your malpractice carrier to create and implement a file retention policy. But what if the client papers are extensive perhaps from a decade-long attorney-client relationship with a municipality spanning multiple ongoing and closed matters? . or product liability cases. the order of the court, upon the application of either client or attorney, Although California courts have not yet addressed the retention period, several bar associations within the state, including the State Bar of California, have provided non-binding guidance on this issue. [2] As a representative of clients, a lawyer performs various functions. applicable tribunal, pursuant to rule 3-700(A)(1), to withdraw from the The Deserts first and only Law School. California Rule of Professional Conduct 3-700(A)(2) and (D), as well as ABA Model Rule 1.16(d), require that attorneys take reasonable steps to avoid prejudice to their clients rights when a representation ends, including giving the client due notice of termination, allowing time for a client to get other counsel, and promptly returning unearned advance fees and other papers and property of the client that the client has requested be returned. A client can be harmed substantially if the firm loses or destroys documents that are not otherwise readily available to the client. Practicing the Dos and Donts in releasing client files and responding to such requests will help you avoidethics complaints and malpractice claims, as well as protect your reputation and your (ex) clients interests. to represent the client competently and to prevent harm to the client, . filed pursuant to Code of Civil Procedure section284 is not valid 330. 879]; Academy Be sure to perform independent research and analysis. This opinion is issued by the Standing Committee on Professional Responsibility . See Rule 1.13. of S.F. No. Although lawyers retainbilling and collection rights, they must hand over documents that have been served or filed in litigation matters, as well as items for which they agreed to advance costs and paymentseven if theclient has not paid for the work or items. 5 See Kallen v. Delug (1984) 157 Cal.App.3d 940 [203 Cal.Rptr. No. of such service. Board has adopted new rule 3-520, subject to the approval of the California This obligation stems from an attorney's ethical duty to provide competent representation to a client, also known as the duty of competence (see ABA Model Rule 1.1). new trial]. And if the firm hands overthe file withoutretaining any copy, it is especially important to obtain written acknowledgment from the ex-client or new counsel confirming receipt of the file. Using cloud computing software, such as Dropbox,to transmit client files is alsonot prohibited specifically. (Academy of California Optometrists, Inc. v. Superior Court(Damir) (1975) 51 Cal.App.3d 999, 1005-06 [124 Cal.Rptr. Attorneys have an ethical obligation to promptly return a former client's papers and property upon a client's request when representation ends. and other papers filed with the court which become part of the public record the attorney is prohibited by statute or court order from sharing with "terminated" in that rulemust be construed in light of file," but rather on the ethical obligation on withdrawal to act reasonably Opinion 1192 (06/09/2020) files, lawyer files, lawyer's files, client files. of rule 3-700(D) are contingent upon the formalities of substitution and But the opinion states that certain materials generated by a lawyer for internal use may have to be provided to the client when the lawyers representation of the client is terminated before the matter is completed. in seeking to dissolve that relation whenever he ceases to have absolute . (ii) all items for which the lawyer has agreed to advance costs and expenses regardless of whether the client has reimbursed the lawyer for the costs and expenses including depositions, expert opinions and statements, business records, witness statements, and other materials that may have evidentiary value; (3) in nonlitigation or transactional representations, client files, papers, and property shall not include drafted but unexecuted estate plans, title opinions, articles of incorporation, contracts, partnership agreements, or any other unexecuted document which does not otherwise have legal effect, where the client has not paid the lawyers fee for drafting the document(s). . However, you may visit "Cookie Settings" to provide a controlled consent. No. 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. could result in prejudice to the client, including for example, the waiver Is it ethically permissible for an attorney whose employment has of the client, all the client papers and property. 6 The Formal Opn. A lawyeris not relieved of his duty tosurrender client property by claiming the client previously received copies of pleadings and other items during representation. in an action or special proceeding may be changed at any time before or attorney. Ethics Opinion 1192 - New York State Bar Association As a result, client files in criminal matters should not be destroyed without the former clients express consent while the former client is alive. Make sure that you read the rule as well as exceptions so that you can follow the right course of action. These cookies will be stored in your browser only with your consent. . In California, an attorneys obligations regarding closed client files are derived from rule 3-700 of the Rules of Professional Conduct and Business and Professions Code section 6068, subdivision (e). No. Rules 1.16(d)(Declining or Terminating Representation) and 1.15(c)(4)(Safekeeping Property), Minnesota Rules of Professional Conduct (MRPC), requirelawyers to returnclient files upon the clients request. 1984-1); 3. of counsel form is filed or the tribunal before whom the matter is pending Rule 1.4(a)(3), MRPC, states a lawyer shall keep the client reasonably informed about the status of the matter., In itsFormal Opinion 471, the ABA encourages lawyers to regularly provide clients with information and copies of documents during the course of representationand encourages lawyers to advise clients to maintain these documents. The California Desert Trial Academy is a progressive law school where students focus on those skills necessary to become not just a lawyer, but an attorney-advocate. Most state jurisdictions have adopted the entire-file approach, and the ABA opinion cites ethics opinions from Alaska, Arizona, Colorado, Iowa, Oregon and Virginia as examples of how it is applied. of Civil Procedure section284 provides: The attorney An essential skill for attorneys is the ability to train new employees and engender a feeling that they work with you in contrast to working for you. A student intending to seek admission to practice law in a jurisdiction other than California should contact the admitting authority in that jurisdiction for information regarding the legal education requirements in that jurisdiction for admission to the practice of law. Examples of such information include the address or telephone . It is a service of the Legal Ethics Committee of the San Diego County Bar Association. confidence in either the integrity or the judgment or the capacity of the The clients ownership is not altered by the circumstances or the timing of the termination of the attorney-client relationship, or by whether the attorney has been paid for his or her services. way, the reason for permitting the attorney to control and possess the How Long Should An Attorney Retain Client Records? Discovery, has otherwise permitted counsel to withdraw, and therefore, has the same PDF Introduction and Scope - cobar.org Formal Opinion No. The Committee valuable services under his employment, or that the client is indebted . . Thus, an attorney's obligation to turn over the file to the client is taken very seriously by the state bar and the courts. (see San Diego Cty. Keeping at least an electronic copy, however, is a good, protective measure. McGuireWoods the attorney must "promptly release to the client, at the request . A court-appointed lawyer must return the client's files to the client upon request after being fired. Accordingly, even though a client has otherwise acted to "discharge" that, "[s]ubject to any protective order or non-disclosure agreement," It is also important to consider the current status of the matter. Talk with the client to figure out what they do or dont need. He cites two elements in particular: One, the opinion provides a fairly clear list of the materials that need to be turned over on request or on terminationand those materials that need not be turned overalthough the opinion could have done more to explain that lawyers may turn over more information than the ethical rules require, and that any doubts as to what must be turned over should be resolved in the former clients favor. 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. Rule 1.16(e) describes which papers and property belong to the client and must besurrendered asthe clients file.