Ethics Opinon 1997-1

QUESTION
May an attorney ethically withhold from a client(1) the attorney's uncommunicated work product relating to that client's representation?

CONCLUSION
An attorney may not withhold from a client the attorney's uncommunicated work product if it was reasonably necessary to the client's representation.

BACKGROUND
Prior to the enactment of Code of Civil Procedure ("CCP") section 2018(f), effective January 1, 1991, California courts disagreed on an attorney's legal obligation to give a client the attorney's uncommunicated work product upon termination of their relationship. Some courts broadly stated that an attorney must give a client virtually everything relating to the client's representation.(2) However, the issue in these cases was whether an attorney could assert a lien on, or withhold, client files for nonpayment.(3) In contrast, other courts broadly stated that an attorney need not give a client uncommunicated work product based on the "absolute" protection afforded work product in CCP section 2018(c).(4)

The enactment of CCP section 2018(f) ended much, but not all, of the debate about an attorney's legal obligation to give a client uncommunicated work product by expressly eliminating the work product privilege in a legal malpractice action brought by a client. However, neither this statute nor the cases reconcile the ethical and the legal obligation of an attorney to give a client uncommunicated work product in all situations.(5)

DISCUSSION
The issue of whether an attorney is ethically obligated to give a client uncommunicated work product usually arises in connection with the termination of an attorney-client relationship.(6) Rule 3-700 addresses an attorney’s ethical obligations upon termination of the attorney-client relationship. Specifically, Rule 3-700(A)(2) provides that “a member shall not withdraw from employment until the member has taken reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client, including . . . complying with rule 3-700(D). (Emphasis added.) The terms of this subsection make clear that compliance with Rule 3-700(D) is always a step that attorneys must take to avoid reasonably foreseeable prejudice to the rights of a client.

Rule 3-700(D)(1) 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 only states that this subparagraph was intended to codify existing case law, and cites Academy of California Optometrists, Inc. v. Superior Court (1975) 51 Cal. App. 3d 999 and Weiss v. Marcus (1975) 51 Cal. App. 3d 590.(7) These cases offer little guidance because their issue was whether an attorney could ethically assert a lien on, or withhold, the client’s files for non-payment.(8)

What Rule 3-700 makes clear is that the critical inquiry is whether specific information must be given to the client to avoid reasonably foreseeable prejudice. Expressly included in Rule 3-700 is that information which is “reasonably necessary to the client’s representation,” regardless of whether it is specifically among the types of writings listed in Rule 3-700(D)(1), or falls within some other category.(9)

The issues of what information is reasonably necessary to the client’s representation, in particular, and what information might result in reasonably foreseeable prejudice to the client if withheld, in general, will differ depending upon the circumstances presented at the time the request or demand is made. However, the attorney’s ethical responsibility is always the same.(10) Thus, for example, an attorney employed solely to do research and render an opinion would not be entitled to withhold his research upon discharge even though Rule 3-700 (D)(1) does not specifically list legal memoranda.(11) That research is the essence of the client’s representation. On the other hand, an attorney should not be required to give a client generic material that the attorney never attempted to tailor for the client’s case because such material is not useful to the client’s representation without tailoring.(12)

This conclusion brings into harmony the attorney’s ethical obligations and the attorney’s legal obligations. CCP section 2018(f) requires an attorney sued for malpractice to produce his work product during discovery. CCP section 2018(e) requires that a client consent to disclosure of work product to the State Bar in disciplinary proceedings. Business and Professions Code section 6202 provides that the work product privilege does not prohibit the disclosure and introduction of relevant evidence, including work product, in an attorney’s fee arbitration proceeding. This Opinion recognizes that an attorney’s work product is not absolutely protected from disclosure and that the client has an interest in the work product.

(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) See, e.g., Academy of California Optometrists, Inc. v. Superior Court (1975) 51 Cal.App.3d 999 (attorney's attempt to assert a lien on client's files for non-payment is unethical and attorney required to deliver all files to client forthwith); Weiss v. Marcus (1975) 51 Cal.App.3d 590 (discharged attorney's work belongs to the client regardless of payment for services).

(3) S.F. Form. Opn. 1990-1, p.3-4.

(4) See, e.g., Travelers Ins. Companies v. Superior Court (1983) 143 Cal.App.3d 436; Popelka, Allard, McCowan & Jones v. Superior Court (1980) 107 Cal.App.3d 496; Fellows v. Suprior Court (1980) 108 Cal.App.3d 55; and Rumac, Inc. v. Bottomley (1983) 143 Cal.App.3d 810.

(5) S.F. Form. Opn., supra., p.4. One well-analyzed case has addressed an attorney's ethical obligation to give a client uncommunicated work product when sued by a client for malpractice, Platt v. Superior Court (San Diego )(1989) 214 Cal.App.3d 779 (review granted 1/4/90; review dismissed 8/30/90, and remanded to Ct. App., 4th Dist., Div. 1). The California Supreme Court granted review of this case and the conflicting case of Neeb v. Superior Court (Orange)(1989) 214 Cal.App.3d 693 to resolve the issue of whether an attorney was obligated to allow a former client to discover uncommunicated work product in a subsequent legal malpractice action. The issue was rendered moot before the Court decided the cases because the legislature enacted Code of Civil Procedure section 2018(f).

(6) An attorney’s obligation to provide a client with uncommunicated work product relating to the client's representation is the same during the representation as it is upon termination. California Rule of Professional Conduct (“Rules”) 3-500 requires an attorney to “keep a client reasonably informed about significant developments relating to the employment or representation and promptly comply with reasonable requests for information.” Therefore, if it is reasonable for a client to request uncommunicated work product, then an attorney must provide such information to the client upon request.

(7) The discussion does not cite any of the contradictory cases cited in note 4, supra., as a basis for this rule.

(8) See note 2, supra., and accompanying text.

(9) S.D. Form. Opn. 1977-3 and 1984-3 analyzed an attorney’s obligation to turn over a client’s files upon termination under former Rule 2-111A(2), which provided: “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, delivering to the client all papers and property to which the client is entitled. . . .” (Emphasis added.) The former Opinion concluded that an attorney could withhold uncommunicated work product because it was the property of the attorney rather than the client. The latter Opinion concluded that the attorney could assert the work product privilege against his own client. To the extent these previous Opinions conflict with this Opinion, they are disapproved.

(10) SF Form. Opn. 1990-1, p.4.

(11) Platt v. Superior Court (1989) 214 Cal.App.3d 779 (review granted 1/4/90; review dismissed 8/30/90, and remanded to Ct. App., 4th Dist., Div. 1).

(12) While an opinion that an attorney must turn over everything related to a client’s representation would eliminate any guesswork for the attorney, it might encompass material that would not benefit the client but unnecessarily burden the attorney.

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.