I have a client who came to me after being represented by a prior family attorney in his divorce case. After one year and having lost custody of his children, this client came in to my office asking me to take over the case. This client wanted a payment history since he will need them for trial. The attorney responded by saying “he still owes him money and to stop asking them to work for free.” Keep reading and you will see that this attorney’s response could detrimentally affect him if this client seeks the assistance of the California State Bar.
I have also had clients come in my office after they fired their prior attorney and want me to represent them in an ongoing case. Many will have no documents about their case and I will advise them to request from their prior attorney their client file. Most will ask me if they can do that. The answer is yes.
Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interest, including but not limited to surrendering papers and property to which the client is entitled. The lawyer may only retain papers relating to the client to the extent permitted by law.
What must the attorney surrender? Can the attorney assert a “work-product” privilege against the client? And who pays the bill for copying? The answers to these questions are not without debate. However, the rule of thumb appears to be that most “everything” belongs to the client. The first thing a client must do to obtain all her file is to request it. The attorney then must deliver to a client all the original documents provided by the client, obtained by the attorney for the client and finished work-product for the representation.
What is “work-product’? These are internal notes and memos which have been generated primarily for the purposes of working on the client’s problem. There are 2 schools of thought: One which is the attorney may withhold documents that are deemed “work-product.” The other is that the entire contents of a client’s file belong to the client and that neither the attorney-client privilege nor work –product doctrines apply.
Only a few courts and state bar ethics committees have considered the issue of who must bear the cost of photocopying client files. This is strictly a matter of contract or course of dealings. “The lawyer should return all items which are the client’s property without charge. Whether the lawyer charges for copies of other items or for ‘culling the file’ is not in the Committee’s view of questions of ethics, but a matter of the lawyer’s usual and customary practice or, if not, a matter of his agreement with her client.” The American Bar Association Informal Op. 1376
It is my practice to keep my client’s well-advised of the proceedings before them, this includes, but not limited to providing them all discovery and documents in their file. Without doubt, the better course is to err on the side of disclosure and for the attorney to absorb the costs of copying the client’s file, bearing in mind that the court will hold the attorney to the highest fiduciary standard under the law.
Another question is the duty of the attorney to maintain former client files long after a case or upon termination. The papers in a client’s file belong to the client and must be released promptly to the client following termination of the attorney-client relationship if requested by the client. Rule 3-700(D)(2), Rules of Professional Conduct of the State Bar of California. However, if the client does not request the file, the client’s right to the file continues after termination of the attorney-client relationship.”
There is a belief and practice that lawyers are permitted to destroy former client files five years after conclusion of the representation. Not exactly correct. The state Rules of Professional Conduct (“RPC”) and State Bar Act are guidelines to the time limitation. For example, in California, RPC Rule 4-100 )(B)(3) requires records regarding entrusted client property and funds to be maintained five years after the last funds and property has been disbursed to the client.
There are also documents that you cannot destroy without the client’s permission or notice to the affected client, including documents of intrinsic value or significant pecuniary value or any documents required to be deposited in court pursuant to California Probate Code, Section 700, et seq. In criminal cases, the file must be maintained for the life of the former client.
The primary ethical obligation of a lawyer upon termination of the representation is to take steps necessary to protect the client’s interests. One of these steps involves duty to surrender papers and property to which the client is entitled. Lawyers consistently have been disciplined for blanket refusals to surrender the file to the client upon demand. The file is not the property of attorney, it is yours. However, the client must request the documents before the attorney has a duty to deliver.