Ethics Opinion 1970-3

October 1970



When Attorney A is discharged while litigation is pending and the Client substitutes Attorney B, must the Client's files retained in Attorney A's office be turned over to Attorney B, or are the files the property of Attorney A?

What does intra-professional courtesy require in this case?


It is the opinion of this Committee that the material in the files should be delivered to Attorney B where the Client has discharged all economic obligations to Attorney A. Courtesy requires that the attorney take steps to protect himself but also that the attorney help expedite the substitution.


Canon 7 of the Canons of the American Bar Association provides inter alia:

"Clients, not lawyers, are litigants. Whatever may be the ill feeling existing between clients, it should not be allowed to influence counsel in their conduct and demeanor toward each other or toward the suitors in the case. All personalities between counsel should be scrupulously avoided . . . Personal colloquies between counsel which cause delay and promote unseemly wrangling should also be carefully avoided."

Ethical Consideration 7-38 of the Code of Professional Responsibility provides:

"A lawyer should be courteous to opposing counsel and should accede to reasonable requests regarding court proceedings, settings, waiver of procedural formalities, and similar matters which do not prejudice the rights of his client. He should follow legal customs of courtesy or practice, unless he gives timely notice to opposing counsel of his intention not to do so . . ."

Coming more specifically to the obligation of counsel in substitution cases, the 1908 Canons #7 third paragraph notices the situation but does not spell out a rule applying to the present issue. In the 1969 Code of Professional Responsibilities, Canon 2, EC 2-30 the matter is also alluded to in the following language:

"If a lawyer knows a client has previously obtained counsel, he should not accept employment in the matter unless the other counsel approves or withdraws or the client terminates the prior employment."


Question 1. There are three different theories on which Attorney A might conceivably base claims of ownership.

Theory No. 1: The Lien Theory. In many jurisdictions, either as a result of the common law or because of a specific statute, lawyers are accorded liens on the papers and other property of their clients with the purpose of protecting the lawyer from exploitation by the client.

In the facts of the case presented, the client had discharged its economic obligations to Attorney A, so that this theory may not be utilized in this case.

For a discussion of the matter of liens see generally Wood, Fee Contracts of Lawyers, #99. For a discussion of fees on substitution, see 3 ALR.2d 148.

There is a further and more compelling reason. In California there is no general statute specifically granting such a lien. It is true that in recent years the courts have recognized that a lawyer may have an equitable interest in the judgment of recovery in a personal injury case, C.C.P. § 285(2), but this exception is based either on an express or presumed contract between lawyer and client. In the present case, however, the litigation involved incorporation and noninjury litigation.

The California rule is discussed generally in 6 Cal. Jur. 2d 132, 134.

Theory No. 2: The Confidentiality Theory. There is substantial authority for the principle that communications between attorney and client in the course of professional service are to be treated as confidential. Drinker, Legal Ethics, p. 131; C.C.P. 1881; C.E.C. § 950 and B&P Code § 6068(c). Also see Canon 17 of the 1908 Canons of the A.B.A. and Canon 4 of the 1969 Canons of Professional Responsibilities.

But these rules are not presently relevant. They are for the benefit of the client not the attorney. They apply to cases where the attorney and the client are working together or have worked together and cases in which some unauthorized third person, such as adversary counsel, desires to secure the information. Even here the client may waive the privilege and then the information may be reached by the third party.

In the present instance the client and the lawyer have separated. The third party desiring the information is not the client's attorney. The relationship between client and former attorney has been terminated. The client has waived whatever rights of confidentiality there might have been in favor of his new counsel.

Theory No. 3: The Work Product Theory. The adoption of the Federal Rules of Civil and Criminal Procedure heralded a significant change in the common law litigation process. Under the rules the policy became one of emphasis on "discovery" of facts. Among the few items which were held not to be subject to discovery was the "work product" of the lawyer. The leading federal case on the subject was Hickman v. Taylor, 67 S.Ct. 385 (1947). In California, this legislation enacted the discovery statutes, C.C.P. § 2016 and following. The Supreme Court of California declined completely to follow the Supreme Court of the United States in all particulars. In Greyhound v. Superior Court, 264 P.2d 266, it recognized substantially that upon proper showing counsel would be awarded protection from discovery. Under the "work product" concept the person demanding the information is opposing counsel. The person resisting is counsel who assembled the material and who still represents the client. In the present instance, the client is the same, the contending counsel are a former and a present attorney. It is not an adversary proceeding warranting discovery. It is a substitution calling for intra-professional cooperation in aid of the client.

The following quotations from Hickman v. Taylor at Pages 393-394 indicate the limits of the "work product" rule:

"Here is simply an attempt, without purported necessity of justification to secure written statements, private memoranda and personal recollections prepared or formed by an adverse party's counsel in the course of his legal duties. As such, it falls outside the arena of discovery and contravenes the public policy underlying the orderly prosecution and defense of legal claims. Not even the most liberal of discovery theories can justify unwarranted inquiries into the files and mental impressions of an attorney . . ."

"We do not mean to say that all written materials obtained or prepared by an adversary's counsel with an eye toward litigation are necessarily free from discovery in all cases. Where relevant and nonprivileged facts remain hidden in an attorney's file and where production of these facts is essential to the preparation of one's case, discovery may be properly had . . ."

This second statement is relevant. In the present case the two lawyers involved are not adversary counsel in the technical sense. Both are expected to be concerned with the best interests of the same client.

Question 2. The relevant business of substitution might have been conducted promptly and effectively in an atmosphere free from expressions of personal feeling. A rule like the following should be followed:

When a lawyer is notified by the client that the client has terminated the relationship and that other counsel has been selected, the responsibilities of the earlier lawyer are twofold.

First, the attorney should protect him or herself against exploitation by the client in matters of fees, costs and the like. Second, the attorney should use all reasonable means to expedite the process of substitution by delivering to succeeding counsel the complete files on the case. In the event that there is material in those files which the discharged lawyers regard as deserving exclusion from delivery, the attorney should promptly apply to the Ethics Committee for a ruling on the matter. It is not possible to avoid all disagreements, but when they occur it is generally possible to dispose of them in an orderly, courteous and professional manner.

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

EDITOR'S NOTE: The Committee reviewed this opinion on October 6, 1976 and determined that it continues to be valid. Also of assistance on the question presented is Gelfand v. Shivener, 30 Cal.App.3d 364.


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.