Ethics Opinon 1977-3
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.
the attorney have a retaining lien on the client's file?
which portions of the file is the client entitled?
must bear the cost of copying the documents to which the
client is entitled?
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.
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
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.
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.
A: Does the attorney have a retaining lien on the client's
CANONS, OPINIONS, CASE AUTHORITY AND ANALYSIS
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.)
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.
. . ."
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.
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."
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."
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.
B: To which portions of the file is the client entitled?
CANONS, OPINIONS, AND CASE AUTHORITY
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.
a typical client's file into classes of documents, broadly
speaking, there are:
pleadings and other papers filed with the Court which become
a part of the public record;
letters to the client, to the opposition and to witnesses,
and letters to the attorney from the same;
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;
investigative and research reports, (legal and factual),
prepared at the attorney's direction for the attorney's
preparation of a particular matter.
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.
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.
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.
(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.
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.
C: Who must bear the cost of copying the documents to which
the client is entitled?
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. . . ."
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
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.
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
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).
AUTHORITY AND TREATISES
client has the absolute right to discharge the attorney
at any stage of the proceedings. Scott v. Superior Court
(1928) 205 Cal. 525.
for the client to determine who shall represent him. Legal
Ethics, Drinker, p. 191.
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.
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
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.
opinion is advisory only. It is not binding upon the State
Bar, the Board of Governors, its agents or employees.
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.