Ethics Opinon 1984-3

I
QUESTION PRESENTED

Upon withdrawal from representation, must an attorney make available to the client all papers and property in the client's file?

II
SUMMARY

Upon withdrawal, an attorney is obligated to deliver to the client all papers and property to which the client is entitled. Accordingly, the attorney must provide the client with the original of all pleadings, correspondence, deposition transcripts, and similar papers and property contained in the client's file. Even with a consensually created possessory lien over the client's file, an attorney may not withhold the file if to do so would prejudice the client. Should the attorney desire to retain copies of such papers or property, any expenses incurred in producing those copies must be borne by the attorney.

However, pursuant to statutory and decisional law, the client is not "entitled" to any papers or property which constitute or reflect an attorney's impressions, opinions, legal research or theories as defined by the "absolute" work product privilege of the Code of Civil Procedure section 2016, subdivision (b). Although disclosure of the attorney's work product is not obligated, such disclosure is recommended as a matter of professional ethics and courtesy.

III
ANALYSIS

The question of the extent to which a withdrawing attorney must provide the client or the client's subsequent attorney with copies or originals of papers and property maintained in the attorney's file has been the subject of substantial discussion and opinion by this as well as other bar associations within and beyond the State of California. These opinions are discussed in Appendix A. However, the conclusions reached in many of those opinions reflect considerations of legal rights which have now been historically dated by reason of changes in decisional and statutory law.

Based upon recent decisional law, a distinction must be drawn between a client's legal entitlement to an attorney's absolute work product and all other papers and property contained in the client's file. Insofar as any of the prior opinions require mandatory disclosure to the client of an attorney's absolute work product, they no longer reflect the current state of legal property rights vis-a-vis the attorney and client over such work product. Accordingly, the Committee specifically rescinds its Opinion 1970-3 to the extent that opinion is contrary to the analysis and conclusion set forth herein.

The starting point for our analysis of this question is rule 2-111 of the Rules of Professional Conduct of the State Bar of California. Subsection A(2) of that Rule provides, in part, as follows:

"A member of the State Bar shall not withdraw from employment until he has taken reasonable steps to avoid foreseeable prejudice to the rights of his clients, including . . . delivering to the client all papers and property to which the client is entitled . . . ."

Although this Rule does not answer the specific question at hand, it does direct our analysis to ascertain the specific papers and property to which the client "is entitled."

As a general principle, the Committee adopts the viewpoints espoused in this Committee's Opinion 1970-3, Los Angeles Bar Association Opinion 330 and San Francisco Bar Association Opinion 1975-4 insofar as those opinions conclude that all papers and property in the client's file, other than absolute attorney work product, should be delivered to the client upon withdrawal. Because the client is entitled to these documents and, in general, has already paid for them, the originals, or original copies, of such papers and property should be delivered to the client without charge. If the attorney desires to retain copies of such papers and property, any expenses incurred in producing such copies should be borne by the attorney.

The attorney's obligation to deliver to the client all papers and property other than absolute attorney work product generally exists irrespective of whether the client has discharged all economic obligations to the withdrawing attorney. An attorney's nonconsensual general retaining (possessory) lien on the files is not recognized in California. Academy of California Optometrists, Inc. v. Superior Court (1975) 51 Cal.App.3d 999. Even with a consensually created possessory lien, an attorney may not withhold the client's file in order to extort payment of any outstanding fees or costs or where the retention of the file would prejudice the client. Id. However, in the absence of such prejudice, the Committee expresses no opinion as to the general enforceability of a consensually created possessory lien. See, e.g., Hulland v. State Bar (1972) 8 Cal.3d 440, 447; Isrinn v. Superior Court (1965) 63 Cal.2d 153, 157; Academy of California Optometrists, Inc. v. Superior Court, supra, 51 Cal.App.3d at 1003.

With respect to papers and property in the client's files which constitute absolute attorney work product, as defined by Code of Civil Procedure section 2016, subdivision (b), the client's "entitlement" is substantially different. Such papers and property, consisting of the attorney's impressions, conclusions, opinions, legal research and theories, are the "property" of the attorney, rather than the client.
Although traditionally employed in the litigation context, see Federal Rule of Civil Procedure 26(b)(3), it is now well established that the California attorney work product rule codified in section 2016(b) of the California Code of Civil Procedure extends to all aspects of an attorney's employment, whether as negotiator or litigation counsel. Rumac Inc. v. Bottomley (1983) 143 Cal.App.3d 810. With respect to the attorney's impressions, opinions, legal research or theories, the privilege is absolute. Lohman v. Superior Court (1980) 108 Cal.App.3d 55, 62; Popelka, Allard, McGowan & Jones v. Superior Court (1980) 107 Cal.App.3d 496, 502.

Therefore, in view of the unequivocal nature of the absolute work product privilege, any papers or other property contained in the client's file which consist of or reflect the attorney's impressions, conclusions, opinions, or legal research or theories are the exclusive "property" of the attorney. Upon withdrawal, the client is not legally entitled to such papers and property.

Our conclusion in this regard is supported, in part, by the May 31, 1983 opinion of the Court of Appeal, First District, in Travelers Insurance Co. v. Superior Court (1983) 143 Cal.App.3d 436. In Travelers, a party instituted a malpractice action against her former attorney, and others, who represented her in a prior action. In response to the client's discovery request, the trial court ordered the discovery of documents, some of which were asserted to be protected as attorney work product. On appeal, the court reversed insofar as the trial court's order compelled discovery of documents consisting of the attorney's absolute work product. As stated by the court:

"We are aware of no precedent allowing even the former client of an attorney access to writings that reflect that attorney's impressions, conclusions, opinions, or legal research or theories."

Thus, we conclude that the papers and property to which a client is "entitled" and which the attorney is obligated to provide do not include any documents which constitute or represent the attorney's impressions, conclusions, opinions, legal research and theories.

However, the client is entitled to receive all other papers and property. An exact delineation of the types of categories of papers and property which fall within the protected classification of the attorney's absolute work product is beyond the scope of this opinion. It is expected that the attorney's decision to withhold such papers and property will be made in accordance with decisional law and professional ethics.

In view of the uncompromising nature of the conclusion reached herein, the Committee wishes to emphasize the narrow scope of this opinion. Although we conclude that upon withdrawal an attorney is not obligated to provide a client with papers or property containing the attorney's impressions, conclusions, opinions or legal theories, that conclusion is reached as a matter of legal, property rights, rather than of professional ethics. We concur with the language of Opinion 197 of the Los Angeles Bar Association:

"We are of the opinion . . . that an attorney should not govern his actions in this particular solely by what he may legally be compelled to do, but should, as a matter of professional ethics and good taste, allow his former client or succeeding counsel to inspect and make copies of the files or, if reasonable assurance be given that the papers would be returned to the attorney, the attorney should allow the former client or succeeding counsel to take the file for the purpose of having copies made if that be more convenient under the circumstances."

Consistent with this direction, the Committee expects that attorneys shall be guided in such matters by traditional standards of professional ethics and courtesy.

This opinion is advisory only. It is not binding in any manner upon the State Bar of California or the Board of Governors.

APPENDIX A

In Opinion 103 (August 27, 1936) the Ethics Committee of the Los Angeles Bar Association declined to opine, as a matter of legal rights rather than ethics, whether an attorney was obligated to deliver the entire client file, or provide copies thereof, to the client upon withdrawal. However, the Committee concluded that "as a matter of ethics and professional good taste" an attorney should permit a former client to inspect the attorney's office file.

In Opinion 197 (August 3, 1952), the Ethics Committee of the Los Angeles Bar Association reaffirmed the lack of any "legal obligation" on behalf of an attorney to deliver the file or copies thereof to a former client upon withdrawal. Nonetheless, consistent with Opinion 103, the Committee concluded that the attorney should, as a matter of professional ethics and good taste, allow the client to inspect, copy and "borrow", if necessary, the attorney's file.

In Opinion 1970-3 (October 1970), this Committee concluded that where a client had discharged all financial obligations to a withdrawing attorney, the attorney was obligated to deliver the client's file, including all work product materials contained therein, to the client or the client's subsequent attorney. Opinion 1970-3 was later reviewed and reaffirmed on October 6, 1976.

In Opinion 330 (November 30, 1972), the Ethics Committee of the Los Angeles Bar Association revised its earlier Opinions 103 and 197 in concluding that the attorney was obligated to provide originals or copies of papers and property in the client's file upon withdrawal. That obligation to provide copies extended to and included any attorney "work product" for which the client had been billed. Although the Committee provided that the copying of such work product could be done at the client's expense, where the client's file contained copies of documents for which the client had already been billed (deposition transcripts, reports by experts, photocopies of documents obtained from opposing counsel, etc.), such documents were to be provided without further charge.

Finally, in Opinion 1975-4, the Ethics Committee of the San Francisco Bar Association addressed the question of whether an attorney may impose a retaining or possessory lien upon the client's papers and property pending payment of fees or costs. The Committee concluded that such a retaining or possessory lien was not recognized or available in California. With respect to the specific papers or properties which the attorney must make available, the Committee concurred in Los Angeles Bar Association Opinion 197, discussed above. In addition, the Committee specifically concurred in Los Angeles Bar Association Opinion 330 in concluding that the work product for which the client had been billed belonged to the client. Therefore, the client was entitled to receive copies of such work product, although the cost of reproducing such documents could be imposed upon the client.

 

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.