Ethics in Brief

Ethics in Brief is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association.

Return of Client Files

Attorneys have an ethical obligation to promptly return a former client’s papers and property upon a client’s request when representation ends. After a brief representation, that duty may sound simple enough.  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?  Does the attorney need to return everything related to the matters, even materials that the lawyer generated for the lawyer’s own purposes in working on the matters (such as draft pleadings or agreements, and internal notes)?  Does it make a difference that some of the municipality’s matters are ongoing and transitioning to new counsel?

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.  Formal Opinion 471 cautions that obligations vary across jurisdictions, and thus lawyers should get to know the rules where they practice.

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.

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).

California defines “client papers and properties” and then notes two exceptions.  California Rule of Professional Conduct 3-700(D)(1) defines “client papers and property” to include “correspondence, pleadings, deposition transcripts, exhibits, physical evidence, expert reports, and other items reasonably necessary to the client’s representation, whether the client has paid for them or not.”  Rule 3-700(D)(1) provides exceptions for materials subject to a protective order or non-disclosure agreement.

Regarding the format of client files to be returned, State Bar of California Formal Opinion 2007-174 states that, under Rule 3-700, an attorney must produce in electronic format all electronic documents that come within the rule’s provisions, but the attorney is not required to create electronic documents if they do not exist in that format.

Under the ABA Model Rules, ABA Formal Opinion 471 concludes that, in the scenario of the long representation of the municipality, “it is unlikely that within the meaning of Rule 1.16(d), the client is entitled to papers or other property in the lawyer’s possession that the lawyer generated for internal use primarily for the lawyer’s own purpose in working on the municipality’s matters. This is particularly true for matters that are concluded.”

However, given that the lawyer’s 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 client’s interest.  For example, if a filing deadline is imminent, the attorney should provide the client with the most recent draft and relevant supporting research required to meet the deadline.

-- Erin Gibson

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**