Legal Ethics Corner

Ethics Corner 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 for SDCBA members.

Attorneys Face Conflicting Authority in California in Deciding Whether or Not to Turn Over Attorney Work Product

Is an attorney required to provide the fruits of his or her work-product to a former client? Rules of Professional Responsibility, Rule 3-700(D) requires an attorney to "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...." 
Generally, "an attorney's impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances [and] not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party's claim or defense or will result in an injustice." (CCP § 2018.030.)
But, the legislature made clear no work product protection exists on matters "relevant to an issue of breach by the attorney of a duty to the client arising out of the attorney-client relationship." (CCP § 2018.080.) As one court noted, "California has two conflicting absolutes, the absolute right of a client to his attorney's work product, and the absolute right of an attorney to protect his or her impressions, conclusions, opinions, and legal research or theories from disclosure." (Metro-Goldwyn-Mayer, Inc. v. Superior Court (1994) 25 Cal.App.4th 242, 248.) That court aligned itself with the line of authority that "holds that the attorney is the exclusive holder of the privilege for purposes of adversarial discovery conducted in the course of litigation" prior to the passage of Rule 3-700, and that following its passage, it found that California work product laws evinced "clear . . . legislative intent to protect absolute work product from disclosure except in rare circumstances." (Id. at pp. 247-48.)
The Ethics Committee in San Diego has stated 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." (San Diego Ethics Opinion (1997) 1997-1.) The Bar Association of San Francisco Formal Opinion 1990-1 (1990) found that when evaluating the scope of Rule 3-700(D), "It is the opinion of the Committee that there is no ethical obligation upon an attorney to disclose his or her uncommunicated or absolute work product, unless the failure to do so would result in reasonably foreseeable prejudice to the client's rights." The Los Angeles Bar ethics opinion (Formal Opinion Number 330 (1972)), on the other hand, stated, "[i]n the Committee's opinion, 'work product' for which the client may be billed, belongs to the client." 
Most recently, the court in Eddy v. Fields (2004)121 Cal. App. 4th 1543 observed "[t]he statutory work product privilege and the client's right to his or her file pose an apparent conflict, one that has not been definitively resolved by the courts." Unfortunately, the court found "[i]t is unnecessary to resolve these arguably conflicting lines of authority." (Id. at p. 1549.) 
Where does this leave the attorney who receives a request for their file from a current or former client? Although an attorney may technically withhold work product if there is not an alleged "breach by the attorney of a duty to the client arising out of the attorney-client relationship", Rule 3-700 and section 2018.080 require production of the entirety of the file if there is any alleged breach. Thus, practitioners must be cognizant of their relationship and circumstances with any client demanding their file in deciding to hold on to work-product. 

Andrew Servais

**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.**