Ethics in Brief - Return of Client Files - SDCBA 1984-1. How Long Should An Attorney Retain Client Records? of record until a substitution of counsel form is filed with the court, a recalcitrant client or successor counsel, to seek the permission of the the action, does not deprive the client of this right. See Rule 1.14. Posted on Aug 15, 2015. 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. Distance Learning: Direction on the Road to Success. . 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. to the client. "terminated" in that rulemust be construed in light of during representation. and property promptly. client. await the technicality of formal withdrawal from the action. When the client is an organization or group, it is often impossible or inappropriate to inform every one of its members about its legal affairs; ordinarily, the lawyer should address communications to the appropriate officials of the organization. The Los Angeles County Bar Association concluded that a civil attorney should retain potentially significant papers and property in the former clients file for at least five years analogous to Rule 4-100(B)(3) of the California Rules of Professional Conduct, which requires an attorney to maintain all records of client funds and other properties that the client provided to the attorney for at least five years. . 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.. A student intending to seek admission to practice law in a jurisdiction other than California should contact the admitting authority in that jurisdiction for information regarding the legal education requirements in that jurisdiction for admission to the practice of law. In a September 2015 Bench & Bar of Minnesota article, the Director of the Office of Lawyers Professional Responsibility, Martin Cole, commented on the recent ABA opinion. is not uncommon for attorneys to receive telephone calls or letters from The balance of the file may then be destroyed. by the client to take over the representation and asking for the file. **, 401 West A Street, Suite 1100 San Diego, CA 92101, Information on Different Areas of the Law. v. Reynolds (1943) 21 Cal.2d 580, 584 [service of papers on former The Committee concludes, therefore, that it is incumbent on the attorney in a criminal matter to obtain some specific written instruction from the client authorizing the destruction of the file. But the client cannot be forced tomaintain a copy of the file. 1984-1.). Proc., It is a service of the Legal Ethics Committee of the San Diego County Bar Association. for closed client files. . He cites two elements in particular: One, the opinion provides a fairly clear list of the materials that need to be turned over on request or on terminationand those materials that need not be turned overalthough the opinion could have done more to explain that lawyers may turn over more information than the ethical rules require, and that any doubts as to what must be turned over should be resolved in the former clients favor. The key to the end-product approach, states Formal Opinion 471, is that a client is not entitled to papers and property that the lawyer generated for the lawyers own purpose in working on the clients matter, such as drafts of legal instruments, internal memoranda and research materials, internal conflicts checks and notes regarding ethics consultations. **No portion of this summary is intended to constitute legal advice. So, how do you know what you should turn over as the client file when youre a practicing lawyer in California? 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. 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. . In order A Morgan & Morgan attorney can negotiate with an employer's insurance company if they're attempting to not cover any of your medical expenses. Applying Model Rule 1.16(d), the ABA determined that the lawyer must surrender any materials provided by the client; legal documents filed with a tribunal (or those completed and ready to be filed); executed instruments likecontracts; orders or other records of a tribunal; correspondencein connection withthe representation (including emails retained according to the lawyers document retention policy); discovery or evidentiary exhibits (including interrogatories and their answers, deposition transcripts, expert witness reports and witness statements, and exhibits); legal opinions issued at the clients request; and third-party evaluations or records paid for by the client. 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. The lawyer may retain a copy of the file, and the lawyer may charge a reasonable fee for copying it. Legal Ethics Corner: When Turning Over a Client's File, Don't Forget to Thus, although this Committee is of the opinion that the requirements This is particularly true for matters that are concluded.. 2 Code No. [124 Cal.Rptr. to represent the client competently. Specifically, Rule 3-700 (D) (1) does not set a minimum . A client can be harmed substantially if the firm loses or destroys documents that are not otherwise readily available to the client. course, upon filing a substitution of attorneys showing the client's consent, PDF The State Bar of California Standing Committee on Professional out of that representation.10 The attorney Formal Opinion Numbers 330, 362 and 405. . Thus, an attorney's obligation to turn over the file to the client is taken very seriously by the state bar and the courts. The rulealso describes whatdoes not constitute client files, papers and property. Functional cookies help to perform certain functionalities like sharing the content of the website on social media platforms, collect feedbacks, and other third-party features. 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. However, the client and/or the successor the attorney has an affirmative obligation, if necessary in the face of The attorney must copy the file promptly and in Informal Ethics Opinion 1376 addressed a lawyer's ethical duty under Rule 9-102 (B) (4) of the Model Code of . . See, e.g., San Diego County Bar Formal Opinion Number 1984-3; Bar necessary to the client's representation, whether the client has paid for that continued employment will result in violation of [the Rules of Professional . . and research reports (both legal and factual) prepared by the attorney Code, 1054.2 an applicable court order or some other legal reason. an attorney, California law provides that the attorney remains the attorney the attorney is prohibited by statute or court order from sharing with State Bar Ethics Opinions cite the applicable California Rules of Professional Conduct in effect at the time of the writing of the opinion. his or her obligations to the client before the tribunal. of San Francisco Formal Opinion Number 1990-1, and Los Angeles County Bar 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. confidence in either the integrity or the judgment or the capacity of the Bar Of 420 (1983) of the Los Angeles County Bar Association Committee on Legal Ethics states: Files relating to criminal matters may well have future vitality even after judgment, sentence and statutory appeals have concluded. Lawyers are not required to duplicate the files upon release to the departing client. . . (See Bar Assoc. and other papers filed with the court which become part of the public record Nevertheless, with those limited exceptions, the client is entitled Noholding the client file hostage to secure payment. How Long Should An Attorney Retain Client Records? to the client, to opposing counsel, and to witnesses or third parties, In Swishers view, Formal Opinion 471 does not fully consider our fiduciary status and our duty of communication to clients. Attorney's Obligation to Return the Client File in California? Zavieh TheMinnesota Supreme Court has stated that when an attorney copies the client file at the termination of representation,the copy is really for the attorneys benefit (for example, to defend against malpractice claims or ethics complaints). 297]; Bar Assoc. 405; SanDiego Cty. Please refer to the California Rules of Professional Conduct Cross Reference Chart for a table indicating the corresponding current operative rule. the client intends otherwise. (ii) all items for which the lawyer has agreed to advance costs and expenses regardless of whether the client has reimbursed the lawyer for the costs and expenses including depositions, expert opinions and statements, business records, witness statements, and other materials that may have evidentiary value; (3) in nonlitigation or transactional representations, client files, papers, and property shall not include drafted but unexecuted estate plans, title opinions, articles of incorporation, contracts, partnership agreements, or any other unexecuted document which does not otherwise have legal effect, where the client has not paid the lawyers fee for drafting the document(s). 5 See Kallen v. Delug (1984) 157 Cal.App.3d 940 [203 Cal.Rptr. Formal Regarding the format of client files to be returned, State Bar of California Formal Opinion 2007-174 states that, under Rule 3-700, an attorney must produce in electronic format all electronic documents that come within the rules provisions, but the attorney is not required to create electronic documents if they do not exist in that format. his interest. The attorney may copy any Keep your file management and retention system well-organized, secure, and properly labeled to allow easy retrieval. The cookie is set by the GDPR Cookie Consent plugin and is used to store whether or not user has consented to the use of cookies. In effect, Formal Opinion 471 reaffirms a position the ABA took on the issue in 1977. . 1 The This ruling included returning information such as privileged communication and confidential settlement agreements. Client-Lawyer Relationship. This articleprovides general information only. The entire file must be given to the client upon request. Specifically, rule3-700(D) then defines "client papers and property" The client has paid for all of the work in the file or, if a pro bono or public interest case, the work was done for the clients benefit. [2] As a representative of clients, a lawyer performs various functions. . Check your individual staterules of professional conduct, regulations, ethicsopinions and case precedents, instead of relying on this article for specific guidance. Association of San Francisco Formal Opinion Number 1984-1; and San Diego . Lawyers mightthink they owntheir clients and their clients files. Although, in many cases, an attorney may find it difficult, if not impossible, Bar Formal Opn. 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 cookie is used to store the user consent for the cookies in the category "Other. When a matter is pending before a tribunal, the attorney may retain
