Ethics Opinon 2001-1

ISSUE
May an attorney condition delivery of copies of significant documents in the client's file to the client on the client's prior payment of the copying expense when the representation has not been terminated? (1)

CONCLUSION
An attorney may not condition delivery of copies of significant documents in the client's files to the client on the client's prior payment of the copying expense regardless of a provision in the fee agreement to the contrary.

AUTHORITIES INTERPRETED
Rules 3-500 and 3-700 of the California Rules of Professional Conduct

STATEMENT OF FACTS
A fee contract provides that the client must pay the cost of copying any documents in the file that the attorney gives the client throughout the course of representation. While the representation is on going, the client fails or is unwilling to pay the copying charges in advance.

DISCUSSION
Pursuant to the Attorney's Oath (2), two rules of the California Rules of Professional Conduct address the issue of copying documents in a client's file. Rule 3-500 focuses on copying documents during the course of representation and Rule 3-700 focuses on copying documents upon termination of employment.

Rule 3-500 provides:

A member shall keep a client informed about significant developments relating to the employment or representation, including promptly complying with reasonable requests for information and copies of significant documents when necessary to keep the client so informed.

The Discussion section of Rule 3-500 clarifies the copying obligation:

A member may contract with the client in their employment agreement that the client assumes responsibility for the cost of copying significant documents. This rule is not intended to prohibit a claim for the recovery of the member's expense in any subsequent legal proceeding.

Rule 3-700(D) provides in part:

A member whose employment has terminated shall:

(1) Subject to any protective order or nondisclosure 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. (Emphasis added.)

The discussion to Rule 3-700 clarifies the copying obligation:

Paragraph (D) is not intended to prohibit a member from making, at the member's own expense, and retaining copies of papers released to the client, nor to prohibit a claim for the recovery of the member's expense in any subsequent legal proceeding.

This discussion also states that this subparagraph was intended to codify existing case law, and cites Weiss v. Marcus (1975) 51 Cal. App. 3d 590. Weiss held that an attorney can not ethically withhold the client's files for non-payment of the attorney's outstanding bill at the time of termination.

What is clear from a literal reading of these two rules and their accompanying discussions is that an attorney (i) may charge a client for the cost of copying (3) during the representation and at or after termination if the fee agreement so provides; (ii) may sue the client for failure to pay any copying costs authorized by the fee agreement after termination; and, (iii) must not condition delivery of the file at or after termination upon the client's prior payment for those documents. Kallen v. Delug (1984) 157 CA3d 940, 950, 203 CR 879, 885 (attorney's attempt to condition delivery of files on promise to pay after termination is void as contrary to public policy). LA County Bar Assn. Form. Opn. No.'s 48, 103, 197, 253, 330. See also, Vapnek, P., et al., supra at §10:334.

What is not clear is whether an attorney may condition his obligation to give the client copies of significant documents (4) during the course of representation on the advance payment of copying costs if the fee agreement so states. Unlike Rule 3-700, Rule 3-500 does not include the express proviso that the attorney must give the client copies of significant documents throughout the course of representation whether the client has paid for them or not. This obvious omission infers that the drafters of Rule 3-500 intended to allow attorneys to treat copying charges during the course of representation different from copying charges upon termination. However, we believe the opposite conclusion must prevail for two reasons.

First, the analysis of why conditioning delivery of files on payment of copying expenses is void under Rule 3-700 applies as forcefully to the copying provision of Rule 3-500. Rule 3-700 invalidates such a fee provision because it is not supported by consideration: the attorney is already obligated by law to turn over the client's file so the provision is illusory. Kallen v. Delug, supra, 157 CA3d 940, 950. Since Rule 3-500 requires an attorney to give clients copies of significant documents during the representation, a fee provision that conditions delivery on the advance payment of copying costs also lacks consideration and, therefore, is illusory.

Second, the rationale behind both rules is the same: to prevent prejudice to the client. See, Rule 1-100(A). An attorney's failure to give clients copies of significant documents, such as those with time limits, during representation is as detrimental as an attorney's failure to turn over clients' files upon termination because clients cannot protect themselves "in the dark." See, B&P Code §6068(n) and Rule 3-700, Discussion. "Where the reason is the same, the rule should be the same" (Civ. Code §3511); "[t]he law respects form less than substance" (Civ. Code §3528).

Based on the foregoing analysis, we conclude that an attorney must give the client a copy of significant documents throughout the course of the attorney's representation whether or not the client has paid for them. Any provision in a fee agreement to the contrary is void as contrary to public policy. The attorney's recourse is to recover the copying charges after the representation terminates if the fee agreement authorizes them and the client fails to pay them. See, Rule 3-500, Discussion.

(1) For the purpose of this Opinion, "client" refers to a present or former client or the client's new attorney when acting at the direction of the client.

(2) The Attorney's Oath, set forth in Business and Professions Code section 6068, provides:
It is the duty of an attorney to do all of the following:
. . . .
(n) To provide copies to the client of certain documents under time limits and as prescribed in a rule of professional conduct which the Board shall adopt.

(3) Such costs must in any event be reasonable. See, Vapnek, P., et. al, California Practice Guide: Professional Responsibility (The Rutter Group 2000) §5:561.

(4) We do not address the issue of whether a client's request for additional copies of documents after the attorney has already given the client one copy is reasonable.

Disclaimer: This opinion was issued by the Legal Ethics Committee of the San Diego County Bar Association. It is advisory only and is not binding upon any member of the SDCBA, any other member of the State Bar of California, the State Bar of California or its Board of Governors, or any persons or tribunals charged with regulatory responsibilities. The SDCBA, its officers, directors, agents, and the Legal Ethics Committee members assume no responsibility or liability in rendering this opinion.