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.

ISSUES:

1. What are an attorney's ethical obligations to prevent prejudice to the client after the attorney's employment in a litigation matter has been terminated, but before a substitution of counsel form has been filed?

2. Is it ethically permissible for an attorney whose employment has been terminated to withhold the file from the client or successor attorney until the client and the successor attorney have signed and filed or permitted the filing of a valid substitution of attorneys or the attorney has otherwise been permitted to withdraw by the tribunal before whom the matter is pending?

DIGEST:

1. An attorney remains the attorney of record until the substitution of counsel form is filed or the tribunal before whom the matter is pending has otherwise permitted counsel to withdraw, and therefore, has the same duties to act competently to protect the client from prejudice as the attorney did before discharge.

2. When a matter is pending before a tribunal, the attorney may retain possession and control of the file only to the extent necessary to represent the client competently and fulfill any outstanding obligations to the court arising out of that representation. The attorney may not, however, hold the file in order to obtain payment or other consideration from the client in exchange for the delivery of the file to the client. With very limited exceptions, the attorney must make the file available to the client or successor counsel and provide a copy thereof upon demand.

AUTHORITIES INTERPRETED:

Rules 3-110, 3-300, 3-500, 3-700(A), and 3-700(D) of the California Rules of Professional Conduct.

Business and Professions Code section 6068, subdivision (m).

DISCUSSION

An attorney currently represents a client in a litigation matter. The client states that he or she wants to keep the file.¹ Alternatively, the client has informed the attorney of the client's intention to terminate the attorney's employment and replace the attorney with successor counsel. Neither the client nor the successor attorney has signed or filed a substitution of attorneys form. However, the client and/or the successor attorney request that the attorney deliver the file to one or both of them immediately.

A. An Attorney Has a Duty to Act Competently to Protect His or Her Client's Interests Until a Substitution of Counsel is Filed or the Court Otherwise Orders.

Rule of Professional Conduct 3-700(A)(1) prohibits a member from withdrawing from employment in a proceeding before a tribunal without its permission. Accordingly, even though a client has otherwise acted to "discharge" an attorney, California law provides that the attorney remains the attorney of record until a substitution of counsel form is filed with the court, or the Court has otherwise granted permission . (See Code Civ. Proc., § 284.) Furthermore, at least in criminal cases, a substitution of counsel filed pursuant to Code of Civil Procedure section 284 is not valid unless the new attorney actually intends to act as the defendant's attorney.² (See In re Jackson (1985) 170 Cal.App.3d 773 [216 Cal.Rptr. 539] [because no valid substitution of counsel form filed under Code Civ. Proc., § 284(1), trial court had jurisdiction over attorney to order attorney to continue to represent defendant].)

Therefore, for as long as the attorney is the attorney of record for the client in the matter, the attorney is compelled by rule 3-110 to represent the client competently. Rule 3-110 provides in part:

(A) A member shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence.

(B) For purposes of this rule, "competence" in any legal service shall mean to apply the 1) diligence, 2) learning and skill, and 3) mental, emotional, and physical ability reasonably necessary for the performance of such service.

The duties imposed by rule 3-110 continue until the attorney no longer represents the client.

B. A Client Has the Right at Any Time to Discharge an Attorney.

Under California law the client has the right to "discharge" his or her attorney at any time with or without cause. As the California Supreme Court explained in Fracasse v. Brent (1972) 6 Cal.3d 784, 790 [100 Cal.Rptr. 385]:

It has long been recognized in this state the client's power to discharge an attorney, with or without cause, is absolute[.] (Code Civ. Proc., § 284[.]). In discussing the unique relationship between attorney and client, this court stated that "The interest of the client in the successful prosecution or defense of the action is superior to that of the attorney, and he has the right to employ such attorney as will in his opinion best subserve his interest. The relation between them is such that the client is justified in seeking to dissolve that relation whenever he ceases to have absolute confidence in either the integrity or the judgment or the capacity of the attorney. . . .  The fact that the attorney has rendered valuable services under his employment, or that the client is indebted to him therefor, or for moneys advanced in the prosecution or defense of the action, does not deprive the client of this right. . . ." (Citations omitted.)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

We have concluded that a client should have both the power and the right at any time to discharge his attorney with or without cause.

C. The Attorney Still Has Obligations to the Client as Long as He or She Remains the Attorney of Record.

Even though an attorney has been "discharged," as already noted, California law is equally clear that the attorney remains the attorney of record until a substitution of counsel form is filed with the court, or the court has otherwise granted its permission for the attorney to withdraw from the representation. The attorney can still bind his or her client if the other side does not know about the change in counsel. (See Reynolds v. Reynolds (1943) 21 Cal.2d 580, 584 [service of papers on former attorney, after final judgment of divorce, in proceeding to increase support award, held proper]; Sherman v. Panno (1954) 129 Cal.App.2d 375, 379 [notice of entry of judgment for plaintiff, mailed to defendants' former counsel before notice of substitution received by counsel for plaintiff, held effective to start statutory time running on court's power to grant new trial].)

The new attorney will not be recognized by the courts, and his or her acts will be ineffective, unless he or she is substituted as attorney of record or unless the opposing party, by dealing with him or her as an attorney, waives the failure to substitute. (See McMunn v. Lehrke (1915) 29 Cal.App. 298, 307; Davis v. Rudolph (1947) 80 Cal.App.2d 397, 402; In re Marriage of Warner (1974) 38 Cal.App.3d 714, 720 [113 Cal.Rptr. 556].)

D. The Attorney is Required to Turn Over the File After Discharge and May Only Retain Possession of The File or Such Portions of the File as Are Necessary to Represent the Client's Interests Competently.

Upon the termination of an attorney's employment, rule 3-700(D) requires that, "[s]ubject to any protective order or non-disclosure agreement," the attorney must "promptly release to the client, at the request of the client, all the client papers and property."³ That rule further makes it clear that the client's "papers and property" include what has been thought of as the "client file," traditionally created and maintained by the attorney during the course of the representation. Specifically, rule 3-700(D) then defines "client papers and property" as including: "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; . . . . "⁴

As the discussion thus far demonstrates, the attorney who has been "discharged" by the client, but who has not yet been "substituted out" of the case faces conflicting obligations. On the one hand, he or she is required to turn over the clients' "papers and property" upon termination,⁵ and, on the other hand, the attorney owes responsibilities to the "client," and, indeed, the Court, until a proper substitution is filed or the attorney is otherwise permitted to withdraw from the representation.⁶

Under these circumstances, the question is not who owns the file, but who may possess and control the file until the attorney is relieved of his or her obligations to the client before the tribunal. In evaluating the requirements of rule 3-700(D), this Committee believes that the term "terminated" in that rule must be construed in light of rule 3-700(A)(1). The latter rule requires permission from a tribunal where its rules, such as Code of Civil Procedure section 284, require it. Of course, upon filing a substitution of attorneys showing the client's consent, such permission is deemed given pursuant to that statute. The Committee does not believe, however, that this necessarily answers the question posed at the outset of this paragraph.⁷

Thus, although this Committee is of the opinion that the requirements of rule 3-700(D) are contingent upon the formalities of substitution and withdrawal set forth in Code of Civil Procedure section 284, the client's ownership of his or her papers nevertheless raises the question as to whether there is any earlier point at which the attorney must provide the client's papers and property or some portion thereof, to the client.⁸ Rule 3-700(D)(1) simply provides that an attorney whose employment has been terminated shall promptly turn over to the client at the client's request, "all the client papers and property," and does not address this question.

Implied in the representation of the client is the attorney's need to create and maintain those "client papers and property." In order to represent the client competently and to prevent harm to the client, the attorney must, generally, have the file available. Moreover, as Rule 3-700(D)(1) recognizes, the attorney must also retain custody of those documents to which the client is not entitled to have access because of an applicable court order or some other legal reason.

Nevertheless, with those limited exceptions, the client is entitled to constant access to the file at all times during the representation. (See rule 3-500 and Bus. & Prof. Code; § 6068 (m) [attorney must "keep a client reasonably informed" and "promptly comply with reasonable requests for information"].)⁹ This obligation, together with the duty expressed in rule 3-700(A)(2) to take "reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client," unquestionably includes the client's right to demand that the file also be made available for inspection by prospective new counsel at all reasonable times.

Although, in many cases, an attorney may find it difficult, if not impossible, to meet his or her continuing obligations as an attorney of record without the file, in those cases where it is not necessary for the attorney to do so, such as where the case is dormant or successor counsel has begun to take substantial responsibility for the representation, the attorney may not withhold the file from the client or successor counsel merely to await the technicality of formal withdrawal from the action. Put another way, the reason for permitting the attorney to control and possess the client's papers and property is the attorney's duty to protect the client's interests and fulfill the attorney's obligations to the court. When those reasons do not justify the attorney maintaining possession of the file, the attorney may not do so. This includes portions of the file that may be unnecessary even if other portions remain necessary for the attorney's competent representation of the client.

In sum, the attorney may retain possession and control of the file if, and only if, it is necessary to do so in order to represent the client competently and fulfill any outstanding obligations to the court arising out of that representation.¹⁰ The attorney may not, however, hold the file hostage in order to obtain payment or other consideration from the client in exchange for the delivery of the file to the client. It is improper for an attorney to hide behind the obligation to act competently in order to use the file as leverage against a client.¹¹

Accordingly, this Committee believes that although an attorney may, in many cases, retain the file until formally relieved of his or her obligations as attorney of record, the question can only be answered in each case by focusing on the attorney's duty to act competently on the client's behalf and to fulfill any outstanding obligations to the court.

CONCLUSION

The client is entitled to discharge the attorney at any time, and the attorney is ethically obligated to turn over the file, or any part of it, upon the client's request once the attorney's employment has terminated, or at any earlier point where the attorney can do so without impairing his or her obligations to act competently on behalf of the client and to fulfill any outstanding obligations to the court.

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 responsibilities, or any member of the State Bar.

¹ The definition of the term "file" is beyond the scope of this opinion. The concept of a "client file" is not static, and its content will change depending upon circumstances. Certainly, all materials delivered by the client for use on behalf of the client belong to the client, unless the client intends otherwise. The Committee notes that the attorney's ethical responsibilities do not turn on the physical contents of the client's "case file," but rather on the ethical obligation on withdrawal to act reasonably to avoid reasonably foreseeable prejudice to his or her former client. (See Bar Assoc. of S.F. Formal Opn. No. 1990-1 [duty to disclose information, not necessarily just tangible materials].) (Emphasis added.) Other opinions have also considered the possible contents of the client file:

1. Pleadings and other papers filed with the court which become part of the public record (see San Diego Cty. Bar Formal Opn. No. 1977-3);

2. Letters to the client, to opposing counsel, and to witnesses or third parties, and letters to the attorney from such individuals (see San Diego Cty. Bar Formal Opn. No. 1977-3 and Bar Assoc. of S.F. Formal Opn. No. 1984-1);

3. Investigative and research reports (both legal and factual) prepared by the attorney or at the attorney's direction (see San Diego Cty. Bar Formal Opn. No. 1977-3 and Bar Assoc. of S.F. Formal Opn. No. 1984-1); and

4. Discovery, reports, research notes, notes regarding witnesses, strategy and tactics, and similar items generated in the course of the representation. (See Bar Assoc. of S.F. Formal Opn. No. 1984-1.)

For a discussion of whether the attorney's "work product" is part of the "file," please see Code of Civil Procedure section 2018 (f), Bar Association of San Francisco Formal Opinion Number 1990-1, and Los Angeles County Bar Formal Opinion Numbers 330, 362 and 405. An attorney's billing materials are not part of the file. (See Bar Assoc. of S.F. Formal Opn. No. 1984-1.)

We also note that, for purposes of this opinion, whatever the definition of the term "file," it does not include documents or information which the attorney is prohibited by statute or court order from sharing with the client. Examples of such information include the address or telephone number of a victim or witness in a criminal case (see Pen. Code, § 1054.2 prohibiting such disclosure unless permitted by the court), and documents or information governed by protective orders in patent, trade secrets, or product liability cases. These materials cannot be shared with the client until the attorney has obtained the permission of the court to do so.

² Code of Civil Procedure section 284 provides:

The attorney in an action or special proceeding may be changed at any time before or after judgment or final determination, as follows:

(1) Upon the consent of both client and attorney, filed with the clerk, or entered upon the minutes;

(2) Upon the order of the court, upon the application of either client or attorney, after notice from one to the other.

³ It is not uncommon for attorneys to receive telephone calls or letters from another attorney, representing that the second attorney has been hired by the client to take over the representation and asking for the file. An attorney should not turn over the file to "successor" counsel without first confirming with the client directly that the client has indeed hired the second attorney and wants the file released. Failure to do so could result in prejudice to the client, including for example, the waiver of the attorney client privilege or work product protection. (See Evid. Code, §§ 950-955 and Code Civ. Proc., § 2018.)

⁴ The attorney must release the file to the client or the client's successor attorney even if the client already has a copy of all or part of the file. (See Friedman v. State Bar (1990) 50 Cal.3d 235, 244 [266 Cal. Rptr.632].)

⁵ See Kallen v. Delug (1984) 157 Cal.App.3d 940 [203 Cal.Rptr. 879]; Academy of California Optometrists v. Superior Court (1975) 51 Cal.App.3d 999 [124 Cal.Rptr. 668]; Weiss v. Marcus (1975) 51 Cal.App.3d 590 [124 Cal.Rptr. 297]; Bar Assoc. of S.F. Formal Opn. No. 1990-1; San Diego Cty. Bar Formal Opn. No. 1984-3; Bar Assoc. of S.F. Formal Opn. No. 1984-1; L.A. Cty. Bar Formal Opn. No. 405; San Diego Cty. Bar Formal Opn. No. 1977-3; L.A. Cty. Bar Formal Opn. No. 362; Bar Assoc. of S.F. Formal Opn. No. 1975-4; and L.A. Cty. Bar Formal Opn. No. 330.

⁶ The attorney may not simply wait indefinitely to resolve this conflict, if for some reason the client or successor counsel refuses to sign the substitution. California Rule of Professional Conduct 3-700(B)(2) requires an attorney to withdraw from employment when the "member knows or should know that continued employment will result in violation of [the Rules of Professional Conduct] or of the State Bar Act." In order to fulfill the attorney's obligations pursuant to rule 3-700(D) to "promptly release to the client" the client's papers and property upon request following "termination," the attorney has an affirmative obligation, if necessary in the face of a recalcitrant client or successor counsel, to seek the permission of the applicable tribunal, pursuant to rule 3-700(A)(1), to withdraw from the representation.

⁷ Whereas the litigation context requires that the rights of the court and other parties, as well as those of the client, be protected upon the attorney's attempt to withdraw, this does not necessarily dictate the disposition of the file pending that withdrawal.

⁸ Of course, the client has the right to demand the return of his or her original papers and property at any time unless there is a court order or other specific legal proscription to the contrary. The attorney may copy any such papers essential to the representation.

⁹ Moreover, Business and Professions Code section 6068 (n) requires that an attorney provide copies to the client of such documents as the Board of Governors of the State Bar may provide by rule. At the writing of this opinion, the Board has adopted new rule 3-520, subject to the approval of the California Supreme Court, which would specify an attorney's basic obligations, including the requirement that, upon the request of the client, an attorney provide one copy of each significant document within a reasonable time, not to exceed thirty days.

¹⁰ Obviously, in a non-litigation matter, or any other matter where the attorney is not required to obtain permission from "a tribunal," the file must be delivered promptly upon request, following receipt of notice of termination from the client.

¹¹ A discharged attorney who wants to keep a copy of the file normally must bear the copying expense, absent an agreement to the contrary with the client. See, e.g., San Diego County Bar Formal Opinion Number 1984-3; Bar Association of San Francisco Formal Opinion Number 1984-1; and San Diego County Bar Formal Opinion Number 1977-3. However, where copying is done to enable the attorney to fulfill his or her obligations as attorney of record until the client and successor counsel relieve the attorney of those duties by filing the substitution, the attorney ethically may seek reimbursement from the client for those copying costs. However, the attorney cannot withhold the file until the copying costs are paid.

The discharged attorney's obligation under rule 3-700(D) is to release the client's paper and property promptly. While that obligation requires the attorney to act quickly, it does not necessarily mean the attorney may not retain the file long enough to copy it. The attorney must copy the file promptly and in a manner that does not prejudice the immediate needs of the client.