Ethics Opinon 1977-3

I
QUESTION PRESENTED

An attorney has been discharged by his client who now wishes to proceed in propria persona on the matter. The client has not paid the attorney and the attorney wants to withhold the client's file until his fee has been paid.

A. Does the attorney have a retaining lien on the client's file?

B. To which portions of the file is the client entitled?

C. Who must bear the cost of copying the documents to which the client is entitled?

II
SUMMARY

A. The attorney cannot enforce a retaining lien on the client's file if to do so would jeopardize the client's subsequent efforts to prosecute or defend the claim.

B. The client is entitled to all the pleadings and documents that are public records, to all letters and memoranda mailed or prepared on his behalf and intended for his perusal, and to all responses to such letters and memoranda from concerned persons.

The client is not entitled to the attorney's personal notes, rough ideas, or telephone and interview observations, or to research not yet reduced to a pleading or a letter on the client's behalf.

C. Unless the attorney and the client have reached a prior agreement to the contrary, the attorney shall bear the cost of copying those portions of the file to which the client is entitled.

III

QUESTION A: Does the attorney have a retaining lien on the client's file?

STATUTES, CANONS, OPINIONS, CASE AUTHORITY AND ANALYSIS

"Rule 2-111(A)(2) of the Rules of Professional Conduct of the State Bar of California (1975 Amendments) states: '(2) . . . a member of the State Bar shall not withdraw from employment until he has taken reasonable steps to avoid foreseeable prejudice to the rights of his client, including giving due notice to his client, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled, and complying with applicable laws and rules.' (Italics added.)

This rule is identical to Disciplinary Rule DR 2-110(2) of the Code of Professional Responsibility of the American Bar Association, and is expanded in Ethical Consideration EC 2-32: "A lawyer should not withdraw without. . . endeavoring to minimize the possible adverse effect on the rights of his client and the possibility of prejudice to his client. . . ."

"Although these rules relate to withdrawal, they apply with no less force to the discharge of an attorney. His duty to the client is not altered by the circumstances of who terminates the relationship. . . ." Academy of California Optometrists, Inc. v. Superior Court (1975) 51 Cal.App.3d 999, 1005-6.

In Hulland v. State Bar (1972) 8 Cal.3d 440 at page 448, the Supreme Court said, "When an attorney, in his zeal to insure the collection of his fee, assumes a position inimical to the interests of his client, he violates his duty of fidelity to his client."

And again, in California Optometrists, supra at 1006: "We hold that where the subject matter of an attorney's retaining lien is of no economic value to him, but is used solely to extort disputed fees from his client, the lien is void."

In conclusion, if the enforcement of a retaining lien by the attorney in question jeopardizes his client's future success in the matter, then the lien is void and connot be enforced.

QUESTION B: To which portions of the file is the client entitled?

STATUTES, CANONS, OPINIONS, AND CASE AUTHORITY

None.

ANALYSIS

Analogies between attorney-client disclosure and the rules of discovery which regulate disclosure between opposing parties are inappropriate: in the former, a fiduciary relationship exists, while in the latter, an adversary.

Dividing a typical client's file into classes of documents, broadly speaking, there are:

(a) pleadings and other papers filed with the Court which become a part of the public record;

(b) letters to the client, to the opposition and to witnesses, and letters to the attorney from the same;

(c) notes written by the attorney to himself, preparatory to drafting other documents, or as preparation for deposition or trial, or notes of interviews, all these typically characterized by their informality, candor, disjuncture, or semiliterate prose, and containing mental impressions, conclusions, opinions or legal theories;

(d) investigative and research reports, (legal and factual), prepared at the attorney's direction for the attorney's preparation of a particular matter.

It might be argued that every thought that an attorney has with regard to a particular client's file ought properly to be the property of that client--this follows because the attorney would not have had such a thought but for that client, by definition, and the attorney is hired to have precisely those thoughts and, ultimately, to reduce them to appropriate legal activity.

In truth, though, clients do not expect all such attorney thoughts to become their property, nor do attorneys charge fees for each thought they give to a client's file. It can hardly be argued that much of an attorney's conscious and unconscious thinking takes place throughout the day and into the night, as he mulls over each of the many aspects of each of his client's files. These unrefined legal meanderings, often committed to writing, rarely submitted to public scrutiny in so raw a form, are but the germs of the attorney's representation of each client, the seeds of his legal theory and the framework for his analysis of the facts.

Such personal notes as are described above and by class (c) documents are not the property of the client. This is so because the typical attorney-client relationship presupposes that the rough, blemished opinions of the attorney, whether or not reduced to writing, are the tools of his trade, likened to the tools of a carpenter, without which the attorney cannot construct the appropriate legal representation for which the client has retained him and which the client has every right to expect. Therefore, these class (c) documents are ones to which the client has no entitlement.

Class (a) and class (b) documents are the attorney's finished product or responses thereto, and have been voluntarily and strategically exposed to public light by the attorney to further his client's cause. These documents are of the type which both attorney and client expect to become the property of the client, documents for which the client has paid, or can anticipate paying. Class (a) and class (b) documents must be returned to the client, even if the attorney's fee remains unpaid, if the failure to return the documents would jeopardize the client's claim. The attorney's remedy for nonpayment of fees is a suit in quantum meruit for reasonable compensation, or for breach of an employment contract. Echlin v. Superior Court (1939) 13 Cal.2d 368.

Variations among class (d) documents are so numerous that it is not possible to comment generally about specifics. On the whole, however, investigative reports and written expert opinions should be turned over to the client.

QUESTION C: Who must bear the cost of copying the documents to which the client is entitled?

STATUTES AND CANONS

Section 2235 of the California Civil Code says: "All transactions between a trustee and his beneficiary during the existence of the trust, or while the influence acquired by the trustee remains, by which he obtains any advantage from his beneficiary, are presumed to be entered into by the latter without sufficient consideration, and under undue influence. . . ."

Annotations under this section say that, after an attorney-client relationship has been established, an agreement made with reference to the attorney's compensation must be proved by the attorney to have been made fairly and openly, with the client having full knowledge of the facts and of his legal rights. Lady v. Worthingham (1943) 57 Cal.App.2d 557. Similarly, an agreement between an attorney and his client, by which the attorney receives any advantage, is presumed to be void, and the burden is on the attorney to prove that the client freely entered into the agreement. Davis v. State Bar (1942) 20 Cal.2d 332.

The statute and its annotations imply, therefore, that when an attorney owes a duty to his client to return documents, an agreement at that time as to who bears the cost of copying, is presumed void if the attorney gains an advantage.

Canon 9 of the American Bar Association Canons of Professional Ethics states: "A lawyer should avoid even the appearance of professional impropriety." It seems, then, that an attorney who imposes on his client the cost of copying documents which the attorney is under a duty to return, (because a failure to return them would jeopardize his client's interests), appears to be gaining a financial advantage over his client and after the attorney-client relationship has been established. This violates the dictates of Canon 9.

INFORMAL OPINIONS

Summary informal opinion No. A-338 of the A.B.A. Committee on Professional Ethics, which annotates Canon 14 (Suing a Client for a Fee) and DR 2-110, states that telephone calls and hotel bills are not expenses which must be paid by the client, in the absence of a prior agreement to the contrary. Legal Ethics, Raymond L. Wise, A.B., J.D. (2d ed. - 1970).

CASE AUTHORITY AND TREATISES

The client has the absolute right to discharge the attorney at any stage of the proceedings. Scott v. Superior Court (1928) 205 Cal. 525.

It is for the client to determine who shall represent him. Legal Ethics, Drinker, p. 191.

An agreement between the attorney and his client after the initial employment, by which the attorney gains an advantage over the client, is presumed to have been made under undue influence. Cooley v. Miller & Lux (1909) 156 Cal. 510.

ANALYSIS

After the attorney-client relationship has been established, a very heavy burden is upon the attorney to prove, as to subsequent dealings, that he acted in uberrima fides, with the utmost scrupulous good faith, towards his client. Where the attorney is under a duty to make copies of documents and return them to his client, and no prior agreement between the parties contemplates such copying costs, the attorney would have to overcome the appearance that he is extorting his fee from his client in return for documents he is under a duty to return.

In this context, the cost of copying such documents is analogous to the cost of telephone calls incurred by the attorney on behalf of his client. Both expenses are reasonably necessary and foreseeable in the course of the attorney-client relationship. In view of the holding of summary opinion No. A-338, supra, therefore, copying costs cannot properly be charged to the client absent a prior agreement to the contrary.

This opinion is advisory only. It is not binding upon the State Bar, the Board of Governors, its agents or employees.

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.