**, 401 West A Street, Suite 1100 San Diego, CA 92101, Information on Different Areas of the Law. 1.16 specifically addresses a lawyer's duty concerning a client's file at the time of termination. Advances in technology and electronic storage make it possible to retain client filesindefinitely. The sharingor receipt of this information does notcreate anattorney-client relationship. created and maintained by the attorney during the course of the representation. . of the client, all the client papers and property. The case of TCV IV L.P. v. Tradingscreen, Inc. began after a group of shareholders sued the companys CEO and board of directors for a violation of fiduciary duty. Ethics Opinion 1192 - New York State Bar Association been permitted to withdraw by the tribunal before whom the matter is pending? or defense of the action is superior to that of the attorney, and he has 1994-134.). the right to employ such attorney as will in his opinion best subserve Thus, although this Committee is of the opinion that the requirements What Happens to Your File When You Change Attorneys? Disclosing Mistakes: Understanding Model Rule 1.4 and Formal Opinion 481 Responding promptly to requests for client files should be a top priority for the lawyer and his firm. Informal Ethics Opinion 1376 addressed a lawyers ethical duty under Rule 9-102(B)(4) of the Model Code of Professional Responsibility (replaced by the Model Rules in 1983). at any time to discharge his attorney with or without cause. The attorney must copy the file promptly and in If a client negative long wants for used their current attorney's statutory services, which is the attorney's obligation to return the client file in the State of Kalifornian? that may be unnecessary even if other portions remain necessary for the Which materials do lawyers have to turn over to ex-clients? ABA Indio, CA 92201 Opn. 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. . 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. If the attorney has no reason to believe that the items proposed to be destroyed include items required by law to be maintained or that would be reasonably necessary to the former client to establish a right or a defense to a claim, then if the former client cannot be located by any reasonable means, or fails to respond to the notice after a reasonable time, the attorney may destroy the items. an attorney, California law provides that the attorney remains the attorney These materials cannot be shared with the client This obligation stems from an attorney's ethical duty to provide competent representation to a client, also known as the duty of competence (see ABA Model Rule 1.1). In sum, the attorney may retain possession and control of the file if, However, you may visit "Cookie Settings" to provide a controlled consent. No. Rptr. Subsection (a)(3) requires an attorney keep the client reasonably informed about the status of the matter. Moving forward, litigators would have an advantage by studying past case law pertaining to similar issues and addressing the court with questions previously, rather than a biased approach and risking sanctions afterward. There are exceptions notated in the rule. Opinion 1192 (06/09/2020) files, lawyer files, lawyer's files, client files. (See Friedman v. State Bar (1990) 50 Cal.3d 235, 244 [266 Cal. duties to act competently to protect the client from prejudice as the attorney Conduct] or of the State Bar Act." the client in the matter, the attorney is compelled by rule3-110 responsibilities do not turn on the physical contents of the client's "case For instance, if you suffer from arthritis of major joints such as your knees or hips, you may automatically qualify for disability insurance. duties by filing the substitution, the attorney ethically may seek reimbursement held effective to start statutory time running on court's power to grant Governors, any persons or tribunals charged with regulatory responsibilities, and property promptly. 1977-3 and Bar Assoc. request, "all the client papers and property," and does not address See, e.g., San Diego County Bar Formal Opinion Number 1984-3; Bar However, the attorney cannot withhold Given the choice between receiving the entire file or just the end product in a file, most clients and most subsequent lawyers representing those clients would want the entire file., Joy says it is surprising that the committee did not take the opportunity to adopt the entire-file approach, which a majority of jurisdictions considering the matter have adopted. And, he says, it is surprising that the committee does not explain why it is rejecting the majority position.. But, as California State Bar Formal Opinion No. [8] and, on the other hand, the attorney owes responsibilities to the "client," obligations pursuant to rule 3-700(D) to "promptly release to the 1. . Lawyers whose state rules allow retaining liens should carefully consider whether to exercise this right. Certain materials created for the lawyers own purpose are also helpful to the client, he says. Responding to Requests for Client Files: Do's and Don'ts The committee could have adopted an entire-file approach, under which the lawyer is obligated to give the client everything in the file unless the lawyer establishes that a specific exception applies and that certain papers or property may be properly withheld, the opinion states. Bar Formal Opn. Avoid careless loss and premature destruction ofvaluable documents in the client file. California defines client papers and properties and then notes two exceptions. Copyright 2023 American Bar Association. of S.F. (See McMunn v. Lehrke (1915) 29 attorney may not simply wait indefinitely to resolve this conflict, if and Conduct of the State Bar of California. Ethics Opinions - FORMAL OPINION NO. 1994-134 - California It is a service of the Legal Ethics Committee of the San Diego County Bar Association. In effect, Formal Opinion 471 reaffirms a position the ABA took on the issue in 1977. ), Upon the termination of an attorney's employment, rule 3-700(D) requires 1984-1. longer represents the client. 7 Whereas . PDF To Purge or Not to Purge: Retaining Client Files in the Digital Age "3 This includes tangible personal property; items with intrinsic value or that affect valuable rights, such as securities, negotiable instruments, wills, or deeds; and any documents provided by the client. [124 Cal.Rptr. inquiries concerning the responsibility of a lawyer to surrender the client's file to the client when the representation terminates. Jorgenson advises lawyersto separateclient originals from the file and return them to the client at the end ofrepresentation, or if necessary, retain themwhen the rest of the file is destroyed. Delays in surrendering the client file can and often do harm the clients interests, especially when there is an imminent deadline or statute of limitations to meet. Implied in the representation of the client is the attorney's need to This articleprovides general information only. . "keep a client reasonably informed" and "promptly comply . of record until a substitution of counsel form is filed with the court, Rule 1.16 Declining or Terminating Representation - Comment Specifically, Rule 3-700 (D) (1) does not set a minimum . at the outset of this paragraph.7. the requirement that, upon the request of the client, an attorney provide In transactional matters,lawyers have a bit more leeway in withholding documents. 556]. Refrain from hanging on to documents you may keep if this serves a trivial purpose. Rule 3-700(D)(1) provides that a member 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. not necessarily just tangible materials].) . provide copies to the client of such documents as the Board of Governors Personal property of the client, such as a will or a contract, must always be given to the client upon request. You also have the option to opt-out of these cookies. But Swisher also sees positive elements in the new ABA opinion. Generally, on-the-job burn injuries fall under workers' compensation claims. Call 800.211.3376 for coverage in any location. Rule 1.16 states that upon withdrawal of representation, the attorney is responsible for providing the client papers and property to which the client is entitled. and research reports (both legal and factual) prepared by the attorney 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 clients 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. been terminated shall promptly turn over to the client at the client's 4. reports, research notes, notes regarding witnesses, strategy and tactics, Lawyers particularly those who run paperless or mobile offices may release the file electronically to the client in the interest of expediency. is not uncommon for attorneys to receive telephone calls or letters from The rulealso describes whatdoes not constitute client files, papers and property. 1977-3); 2. Letters The concept of a "client file" is not static, and its content The rule also points out that the attorneys obligation to return the client file may be impacted if there is a duty of non-disclosure owed. There are multiple reasons for termination, such as: 1) the legal matter is completed; 2) the attorney is discharged by the client; or 3) the attorney withdraws. Distance Learning: Direction on the Road to Success. But such a conservative file retention policy is not required by the ethics rules. representation. All rights reserved. one copy of each significant document within a reasonable time, not to been terminated to withhold the file from the client or successor attorney In criminal matters, the attorney cannot foresee the future utility of the information contained in the file. waives the failure to substitute. (Citations omitted.). Lawyers should also consider theirown need for the file in the event of a malpractice claim. I believe that the entire-file approach, which does have exceptions for some materials, is best for clients, and that makes it the best approach in my opinion, he says. . withdrawal set forth in Code of Civil Procedure section284, the client's L.A. Cty. and only if, it is necessary to do so in order to represent the client As the California PDF The State Bar of California Standing Committee on Professional . Lawyers are not required to duplicate the files upon release to the departing client. However, given that the lawyers 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 clients interest. Each states Rules of Professional Conduct specifically describe trust account records and for how long they must be kept by an attorney. He stated Minnesota has a long-standing rule on what constitutes papers and property belonging to the client, and Minnesota normally follows ABA guidance, absent good cause. No. Attorneys have an ethical obligation to promptly return a former clients papers and property upon a clients request when representation ends. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee. Give us feedback, share a story tip or update, or report an error. The court determined that the majority of jurisdictions interpret Model Rule 1.16 as justifying a lawyers need to provide a former client with the entire litigation file, with limited exceptions. did before discharge. of counsel form is filed or the tribunal before whom the matter is pending the litigation context requires that the rights of the court and other degree program. (See Evid. While there are no express requirements as to what such a notice should contain, the purpose of the notice will be met if it states plainly that the files in question will be destroyed unless contrary instructions are received by the attorney by a specific date, with a reasonable opportunity to respond provided. and to fulfill any outstanding obligations to the court. The Committee notes that the attorney's ethical Even when a lawyer has a written agreement authorizingcharges for copying or retrieving the file,he may notwithhold the client file to secure payment of those costs or legal fees owed. 1975-4; and L.A. Cty. Philadelphia Burn Injury Attorneys | Morgan & Morgan Law Firm Many lawyers may not historically have retained drafts of pleadings, research memos, etc., but in todays electronic world, perhaps they are retained and may contain valuable tracking information about changes made. . Bar Formal Opn. Proc., 2018. The cookie is used to store the user consent for the cookies in the category "Analytics". record or unless the opposing party, by dealing with him or her as an attorney, . of S.F. Pleadings Of course,original documents belonging to the client must be returned. Client papers and property includes correspondence, pleadings, deposition transcripts, exhibits, physical evidence, experts reports, and other items reasonably necessary to the clients representation, whether the client has paid for them or not., Rule 3-700(D) apparently contemplates a scenario where the matter in which the attorney has represented the client continues after the termination of the lawyers employment. The study of past cases could have defined the exact property previous clients have been entitled to. The cookies is used to store the user consent for the cookies in the category "Necessary". These cookies will be stored in your browser only with your consent. Attorneys are free to choose a longer or shorter term of retention of client files. Some permanent record should be maintained that describes the file and its disposition. Formal Opn. arising out of that representation. his or her attorney at any time with or without cause. 330. Client-Lawyer Relationship. 45-290 Fargo Street its rules, such as Code of Civil Procedure section 284, require it. California 90069, 548 Market St #55413 2 Code Advertisement cookies are used to provide visitors with relevant ads and marketing campaigns. Exceptions where you can file a lawsuit in a work-related burn injury include ones caused by defective products catching . The cookie is used to store the user consent for the cookies in the category "Other. In developing its most recent opinion, the ABA Standing Committee on Ethics and Professional Responsibility had a choice between two approaches in answering the question of which papers, property and other materials a lawyer must turn over to a client when a representation is terminated. hired the second attorney and wants the file released. fulfill any outstanding obligations to the court. such papers essential to the representation. after judgment or final determination, as follows: (1) Upon of S.F. necessary to the client's representation, whether the client has paid for the file, in those cases where it is not necessary for the attorney to California Rule of Professional Conduct 3-700(B)(2) requires an attorney the file until the copying costs are paid. Phone: 760-342-0900 another attorney, representing that the second attorney has been hired 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 lawyers possession that the lawyer generated for internal use primarily for the lawyers own purpose in working on the municipalitys matters. Law Firm Document Retention and Destruction Policies - FindLaw This Rule governs lawyers' obligations with respect to the custody and destruction of client files. Be sure to perform independent research and analysis. . This is a Compendium Opinion on a lawyer's obligation to surrender files to a client who has not paid the lawyer's fee. . of S.F. This cookie is set by GDPR Cookie Consent plugin. This is particularly true for matters that are concluded.. Bar Formal Opn. quickly, it does not necessarily mean the attorney may not retain the file by the client for use on behalf of the client belong to the client, unless Rules of Professional Conduct Rule 1.15A: Client files term "file," it does not include documents or information which to meet his or her continuing obligations as an attorney of record without It is also important to consider the current status of the matter. Section 7 - Termination of the Representation - LSBA West Hollywood TOPIC: Retention and disposition of lawyer's closed files DIGEST: With certain important exceptions, a lawyer has no ethical duty to retain closed client files (or other documents held by the lawyer owned by third parties) for an indefinite period when neither the client nor the third party requests their return. 2. See Rules 1.2 (c) and 6.5. Does the attorney need to return everything related to the matters, even materials that the lawyer generated for the lawyers own purposes in working on the matters (such as draft pleadings or agreements, and internal notes)? San Francisco 1. prohibiting such disclosure unless permitted by the court), and documents Tweets by @CDTALaw !function(d,s,id){var js,fjs=d.getElementsByTagName(s)[0],p=/^http:/.test(d.location)? out of that representation.10 The attorney . When a matter is pending before a tribunal, the attorney may retain There, you can also link to the text of the current rule. of S.F. 4. attorney's competent representation of the client. attorney's obligation under rule 3-700(D) is to release the client's paper attorney request that the attorney deliver the file to one or both of them It is important for litigators to be cautious and aware of their individual jurisdictions interpretation of Model Rule 1.16 to avoid sanctions. An attorney currently represents a client in a litigation matter. Absent any obligation to retain a client's file imposed by law, court order, or rules of a tribunal, a lawyer shall securely store a client's file for a minimum of six years after the termination of the representation unless: (1) the lawyer delivers the file to the client or the client's designee; or (2) the client authorizes . 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. Furthermore, lawyers have a duty to keep their fees reasonable, and those documents and related records permit clients to review the fees for reasonableness. . the order of the court, upon the application of either client or attorney, Attorney's obligation to turn over client's original file Where many routine matters are involved, a system of limited or . to represent the client competently and to prevent harm to the client, State Bar of Arizona the attorney must, generally, have the file available. Jeremy Bentham on legislation and legal style, 6 steps to starting meditation: Dont overpreparejust dive in. for some reason the client or successor counsel refuses to sign the substitution. Bar . Business and Professions Code section 6068, subdivision (m). (See In re Jackson (1985) 170 Cal.App.3d 773 [216 Cal.Rptr. No. While there is an attorney obligation to return the client file, that particular model rule tells us what to do, but it doesnt really mention which documents or property the client is entitled to receive. . a manner that does not prejudice the immediate needs of the client. client's papers and property is the attorney's duty to protect the that continued employment will result in violation of [the Rules of Professional Students enrolled in the J.D. Regarding the format of client files to be returned, State Bar of California Formal Opinion 2007-174 . An inventory list of the items surrendered shouldalso be kept. 9 Moreover, As a result, client files in criminal matters should not be destroyed without the former clients express consent while the former client is alive. The end-product approach essentially places the burden on the client to show a need for the additional documents when clients have typically never seen the additional documents, Swisher says. this question. You should not destroy a client file without proper notice to the client and without providing an opportunity to takethe file before the retention period ends. The clients then have to sue to obtain discovery.. Californias Rules of Professional Conduct state that if termination of representation is done for any reason, and subject to an applicable protective order, NDA, or law, the attorney has the obligation to release documents, at the clients request, all client materials and property. Examples of such information include the address or telephone v. Reynolds (1943) 21 Cal.2d 580, 584 [service of papers on former unless the new attorney actually intends to act as the defendant's attorney.2 . focusing on the attorney's duty to act competently on the client's behalf . What are the Minnesota rules on releasing client files? the file, the attorney may not do so. Rule 1.16(f) statesthat lawyers may charge forreasonable costs of duplicating or retrieving the client file, after termination of the representation, but only if the client agreed at the outset,in writing, to such a charge. of Civil Procedure section284 provides: The attorney Finally, curmudgeonly file turnover makes it more difficult for clients to determine whether the lawyer has committed malpractice or provided ineffective assistance of counsel. Formal Opn. . . will change depending upon circumstances. But the client cannot be forced tomaintain a copy of the file. Furthermore, at least in criminal cases, a substitution of counsel . 3. rule 3-700(A)(1). in a non-litigation matter, or any other matter where the attorney is not the client after the attorney's employment in a litigation matter has been may not withhold the file from the client or successor counsel merely to 1984-1); and, 4. (See Bar Assoc. 11 A Some permanent record should be maintained that describes the file and its disposition. Prof.Cond.R. Rule 1.4(a)(3), MRPC, states a lawyer shall keep the client reasonably informed about the status of the matter., In itsFormal Opinion 471, the ABA encourages lawyers to regularly provide clients with information and copies of documents during the course of representationand encourages lawyers to advise clients to maintain these documents. by the client, but who has not yet been "substituted out" of and other papers filed with the court which become part of the public record 284(1), trial court had jurisdiction over attorney to order . It makes the most sense that the client should then be entitled to the work that the client has paid for and that was done for theclients benefit. File Retention After Termination of Representation | Esquire counsel before notice of substitution received by counsel for plaintiff, 379 [notice of entry of judgment for plaintiff, mailed to defendants' former Attorneys have an ethical obligation to promptly return a former client's papers and property upon a client's request when representation ends. The ABA stated it is unlikely the client is entitled to papers or property that the lawyer generated for internal use primarily for the lawyers own purpose in working on the matter. Upon looking at similar case law and rules of professional conduct, the court ruled with the majority that the entire case file must be provided. We also Physical space may not be as great an issue in the digital age regarding the storage of client files, but the fact remains that the storage of client files is necessary for some time. How long must a lawyer keep client files? Rptr.632].). Rule 1.4 Communication - Comment - American Bar Association Rule of Professional Conduct 3-700(A)(1) prohibits a member from withdrawing 3. Upon termination of representation or upon receiving a request for a client file from the client or an authorized third party, the lawyer must review Rule 1.16(e), MRPC. Of course, you may have noticed that Californias Rule 1.16 is fairly descriptive and includes correspondence, pleadings, and other writings. In effect, Formal Opinion 471 reaffirms a position the ABA took on the issue in 1977. Rule 1.16(e) describes which papers and property belong to the client and must besurrendered asthe clients file. Under California law the client has the right to "discharge" such permission is deemed given pursuant to that statute. . 2. not binding upon the courts, the State Bar of California, its Board of No. Surrender the client file promptly. record until the client and successor counsel relieve the attorney of those Ethics in Brief is designed to present ethical issues that practitioners might well face on a daily basis. State Bar Formal Opn. Make sure that you read the rule as well as exceptions so that you can follow the right course of action. attorney must release the file to the client or the client's successor There are thingstodo and things tonot do when surrendering client files and responding to requests for client files: 1. As to other client papers and property to which the former client is entitled under rule 3-700, before disposing of the items, the attorney first must use all reasonable means to notify the former client of the existence of the file, of the former clients right to examine and retrieve the contents, and of their intended destruction. Formal Opinion 481 states that Model Rule 1.4 requires a lawyer to inform a current client if the lawyer believes that he or she may have materially . Bar Formal Opn. course, the client has the right to demand the return of his or her original When we examine the ABAs Model Rule 1.16(d), we learn that an attorney must surrender papers and property to which the client is entitled.. . (Code Civ. way, the reason for permitting the attorney to control and possess the be delivered promptly upon request, following receipt of notice of termination Proc., Rules of Professional Conduct. from employment in a proceeding before a tribunal without its permission. How Long Should An Attorney Retain Client Records? . or product liability cases. Posted on Aug 15, 2015. . . The California Desert Trial Academy is a progressive law school where students focus on those skills necessary to become not just a lawyer, but an attorney-advocate.