Editor's Note:
State Bar Ethics Opinions cite the applicable California Rules of Professional Conduct in effect at the time of the writing of the opinion. Please refer to the California Rules of Professional Conduct Cross Reference Chart for a table indicating the corresponding current operative rule. There, you can also link to the text of the current rule.
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To what extent must a criminal defense attorney, having been relieved by successor counsel, cooperate with new counsel?
A criminal defense attorney must turn over to the client or to successor counsel written materials generated during the representation of the client as well as all pleadings, reports, and correspondence regarding the case. The attorney must also provide the client or successor counsel with other information not reduced to writing if the failure to provide the information might result in prejudice to the client.
Rules 3-400, 3-700(A)(2) and 3-700(D)(1) of the Rules of Professional Conduct of the State Bar of California.
The Committee has been asked to delineate the ethical responsibility of a criminal defense attorney, once having been relieved by successor counsel, to cooperate with new counsel. In the situation specifically presented, the client has been convicted and new counsel will be handling the appeal. Appellate counsel has asked trial counsel questions regarding the representation below, including matters of strategy at the trial level. Trial counsel has asked the Committee if she has an ethical duty to respond to these inquiries.1
Generally, ethical obligations with respect to clients arise as a result of the employment relationship. In the situation presented, the attorney-client relationship has terminated. However, an attorney's obligation to her client does not cease with the termination of the employment relationship.2 Regardless of how or why the attorney-client relationship has terminated, Rule of Professional Conduct 3-700(A)(2) provides:
A member shall not withdraw from employment until the member has taken reasonable steps to avoid prejudice to the rights of the client, including giving due notice to the client, allowing time for the employment of other counsel, complying with rule 3-700(D), and complying with other applicable laws and rules.
Pursuant to rule 3-700(D)(1), an attorney whose employment has terminated shall:
Subject to any protective order or non-disclosure 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.
Thus, the attorney must turn over all papers and property in the client's file to the client or to successor counsel.3 This would include the entire contents of the file, not just the pleadings, depositions and exhibits in the file, and includes work product reasonably necessary to the client's defense. The rule speaks of "other items reasonably necessary to the clients representation . . ." and these "items" include attorney work product. In addition, because the attorney's obligation upon withdrawal is to "avoid prejudice to the rights of the client," the attorney must provide the client with items generated during the representation so that the client does not have to hire new counsel to regenerate these same items. The attorney's impressions, conclusions, opinions, legal research, and legal theories prepared in the client's underlying case ordinarily are "reasonably necessary to the client's representation."
This conclusion is supported by cases construing the work product privilege. In Weiss v. Marcus (1975) 51 Cal.App.3d 590 [124 Cal.Rptr. 297], the court held that the work product of the discharged attorney belongs to the client, whether the client has paid for it or not. In Lasky, Haas, Cohler and Munter v. Superior Court (1985) 172 Cal.App.3d. 264, 279 [218 Cal. Rptr. 205], the court noted that "[t]here are strong ethical public policy considerations for concluding that the client has an absolute right of access to all work generated by his attorney in representing the client's interests."4 In Spivey v. Zant (5th. Cir. 1982) 683 F.2d 881, the court held that the work product privilege is designed to prevent a client's adversary from obtaining materials prepared by the attorney on behalf of the client and did not prohibit the client from gaining access to his own file. In Roberts v. Heim (N.D. Cal 1988) 123 F.R.D. 614, the court found that the reasoning in Zant applied under the California law relating to the work product privilege.
This reasoning is in accord with Ethical Consideration 2-32 of the American Bar Association Model Code of Professional Responsibility which provides that:
A lawyer should not withdraw without considering carefully and endeavoring to minimize the possible adverse effect on the rights of his client as a result of his withdrawal. Even when he justifiably withdraws, a lawyer should protect the welfare of his client by giving due notice of his withdrawal, suggesting the employment of other counsel, delivering to the client all papers and property to which the client is entitled, cooperating with counsel subsequently employed, and otherwise endeavoring to minimize the possibility of harm . . . . (Emphasis added.)5
Where these items have not been reduced to writing, the attorney's obligation to the client remains to "avoid prejudice to the rights of the client." Where the information is of such import that ignorance of it might result in such prejudice, the attorney must volunteer the information. (See Bar Association of San Francisco Ethics Opinion No. 1990-1.) The amount and extent of this voluntary assistance to the client will vary from case to case, and in situations that would require extensive effort to be undertaken by former counsel, it would be proper to contract with the client to be paid for this assistance if the work requested requires more than just turning over the client papers and property. (See Bar Association of San Francisco Ethics Opinion No. 1984-1 and Los Angeles County Bar Association Formal Ethics Opinion No. 360.)
This conclusion is based on the specific scenario presented to the Committee — a criminal case where appellate counsel is seeking information in the possession of trial counsel. This situation is qualitatively different from other attorney-client relationships, because the client possesses the Constitutional right to the effective assistance of counsel. (See, e.g., Powell v. Alabama (1932) 287 U.S. 45 [53 S.Ct. 55].) This Constitutional right to the effective assistance of counsel includes the right to effective assistance of counsel on appeal.6 Trial counsel should not undermine that right by refusing to cooperate with appellate counsel.
In the criminal context, appellate counsel has a duty to identify arguable issues and to raise them on direct appeal or in related writ proceedings. Full and prompt disclosure by trial counsel of matters which may not be in the record provides for expeditious processing of the client's case. Where trial counsel refuses to cooperate with the investigation of a claim of ineffective assistance of counsel, the end result may be that formal habeas proceedings may be instituted prematurely by appellate counsel, and this may work to the detriment of the client. In such situations, trial counsel's refusal to cooperate may harm the client, and by harming the client, counsel is violating the ethical duty she owes her client.
We believe that the Rules of Professional Conduct impose a duty upon trial counsel to fully and candidly discuss matters relating to the representation of the client with appellate counsel and to respond to the questions of appellate counsel, even if to do so would be to disclose that trial counsel failed to provide effective assistance of counsel. This decision is in accord with the general rule that the attorney owes a duty of complete fidelity to the client and to the interests of the client. (See Clancy v. State Bar (1969) 71 Cal.2d 140 [454 P.2d 329]; see also State Bar Formal Opinion No. 1984-83.) And, inasmuch as the attorney's duty to the client survives the termination of the attorney-client relationship, the fiduciary duty to the former client requires the attorney to protect the interests of the client and make appropriate disclosure.
It is the opinion of the Committee that the attorney's obligation to cooperate with successor counsel is grounded in rule 3-700, and that the original attorney is obligated to assist her former client by providing him or her with all materials generated as a result of the representation. Where the need arises for successor counsel to learn matters that have not been reduced to writing, the original attorney should provide this information to the client and to successor counsel, and if such assistance would require extensive effort from former counsel, the attorney may properly seek compensation for such effort.7
This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of the State Bar of California. It is advisory only. It is not binding upon the courts, the State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibility or any member of the State Bar.
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