MCLE Self Study | Current MCLE Article

By Wendy L. Patrick

When representation is concluded, lawyers often face the issue of how and when to return a client’s files. In addition, many lawyers maintain electronic copies of client files in many different formats – formats that might differ from the format preferred by the client. In these situations, lawyers sometimes struggle with how to deliver such files in a method that will satisfy the client and not unduly burden the attorney.

This article explores some of the ethical rules and opinions that apply to the contemporary issue of returning client files after termination of representation.

Electronic Client Files

Under California Rule of Professional Conduct 3-700, paragraph (D) states in pertinent part that a lawyer whose employment has terminated shall release to the client at his or her request all client papers and property. These are described 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 ”

Guidance in the area of both physical and electronic client files is found in the California rules, the Amarican Bar Association rules and in ethics opinions. Regarding looking to ethics opinions for guidance, California Rule 1-100 states that while they are not binding authority, California ethics committee opinions should be consulted by California lawyers “for guidance on proper professional conduct.” The rule also states that “Ethics opinions and rules and standards promulgated by other jurisdictions and bar associations may also be considered.”

For example, what if all or part of the client papers and property are kept electronically? Orange County Bar Association Formal Opinion 2005-01 states that the lawyer should employ a balancing test when addressing the question as to whether the attorney who is already turning over hard copies of everything in a client’s electronic files must also turn over the electronic files themselves. The balancing test would weigh the expense and time involved in copying and/ or transferring the electronic files against the client’s need for the additional electronic files.

This opinion also notes that an attorney’s work product may be contained in client files electronically as “metadata,” although the opinion was silent on whether that needs to be turned over as well. However, the opinion also offers that if an attorney is concerned about metadata, he or she may choose, if appropriate under the circumstances, to print the documents and deliver them in that format which will not show the internal changes.

The opinion notes that an unsophisticated client may be unable to access electronic files, and therefore an attorney may have to print certain files for the client. (citing Maine Bd. of Overseers of the Bar Ethics Op. 183 (2004). On the other hand, the opinion notes that North Carolina Ethics Op. 5 (2002) permits an attorney to turn over e-mails electronically even in the face of a client request to the contrary due to the wide availability of computers.

State Bar of California Formal Opinion 2007-174 states that upon termination of employment, under Rule 3-700 an attorney is ethically obligated to produce at the client’s request all electronic documents that come within the rule’s provisions for release, but the attorney is not required to create such items if they do not exist nor is an attorney required to change the document application from WordPerfect to Word, etc. The opinion cites for comparison purposes New Hampshire Bar Association Ethics Committee Op. No. 2005-06/3, which concluded that under New Hampshire rules, an attorney has an obligation to provide all relevant files in both electronic and paper format, regardless of the burden imposed. It also cited Illinois State Bar Association Advisory Op. No. 01-01, which concluded that under Illinois rules, an attorney cannot refuse a client request for electronic versions of relevant documents if they can be easily retrieved.

Like the Orange County Op., Formal Opinion 2007-174 also discusses metadata. While it does not discuss attorney work product contained within metadata, the opinion notes that an attorney is obligated, prior to releasing the information, to take reasonable steps to strip any metadata in the electronic documents containing confidential information belonging to any other client per California Business and Professions Code section 6068(e)(1), which states that one of the duties as an attorney is “[t]o maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.”

Regarding Rule 3-700 (D)(1)’s requirement that the documents be “reasonably necessary to the client’s representation,” the opinion states that an item falls within this definition if it was “generated during the representation” for continuing use therein. (citing California State Bar Formal Op. No. 1992-127).

In addition, Op. 2007-174 concludes that as a general matter, an attorney’s Rule 3-700(D)(1) obligation is not subject to a balancing test of the sort suggested by Orange County Bar Association Formal Op. 2005-01 (which they cite), noting no support for such a test in the rule itself or any other evidence surrounding the meaning of the rule.

Other Potential Rules When Dealing With Client Files

Regarding the information in electronic files, several more California Rules of Professional Conduct as well as some of the ABA Model Rules of Professional Conduct are worth considering. Note that while California has not yet adopted some versions of the ABA Model Rules, when California does not have an ethics rule governing a specific issue, courts may look to the ABA for guidance, although they may not consider ABA rules and opinions as binding authority. Regarding ABA formal opinions, case law holds that while an ABA formal opinion “does not establish an obligatory standard of conduct imposed on California lawyers,” the ABA Model Rules may be considered as a “collateral source” where there is no direct ethical authority in California.[1]

Rule 5-220, Suppression of Evidence, states that “A member shall not suppress any evidence that the member or the member’s client has legal obligation to reveal or to produce.” Obviously, this rule is implicated when a lawyer is aware that some portion of his or her client’s file may be subject to legal production. This possibility should be subject to careful legal analysis because a lawyer’s belief to the contrary may not carry the day if he or she is wrong.

Rule 1.15, Safekeeping Property, requires a lawyer to preserve client property, including information in a client’s file such as client documents and lawyer work product, from risk of loss due to destruction, degradation or loss.

Competence

Competence arguably applies to everything you do as a lawyer, but is particularly relevant dealing with client files in the 21st century. Your duty of competence includes being able to perform legal representation with competence, bringing in other lawyers who can, or by acquiring the necessary knowledge and skills by the time you begin performing legal services.

California Rule of Professional Conduct 3-110, Failing to Act Competently, states in paragraph (A) that “A member shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence. “Competence” is described in subsection (B) as “to apply the 1) diligence, 2) learning and skill, and 3) mental, emotional, and physical ability reasonably necessary for the performance of such service.” Subsection (C) states that if the lawyer does not possess the learning and skill necessary when the representation was undertaken, he or she may still render competent representation by associating with or consulting another lawyer who does possess the requisite competence, or by acquiring the necessary learning and skill themselves before performing the legal services.

ABA Model Rule 1.1, Competence, mandates competent representation, which is defined as requiring “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” In determining whether or not a lawyer possesses sufficient legal knowledge and skill in a particular matter, Comment [1] notes that relevant factors include “the relative complexity and specialized nature of the matter, the lawyer’s general experience, the lawyer’s training and experience in the field in question, the preparation and study the lawyer is able to give the matter and whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question.”

Comment [2], however, states that “[a] lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar. A newly admitted lawyer can be as competent as a practitioner with long experience” The comment goes on to recognize that important legal skills, such as case analysis, legal drafting and other fundamental skills – including the ability to identify pertinent issues in a particular case – may be more important than specific legal knowledge.

Regarding acquiring competence, the comment notes that “[a] lawyer can provide adequate representation in a wholly novel field through necessary study,” and also notes that competent representation can also be provided through “the association of a lawyer of established competence in the field in question.”

Comment [4] notes that a lawyer may represent a client where he or she can attain the requisite level of competence through “reasonable preparation.” The comment notes that this provision also applies to appointed counsel for a client who is unrepresented (referring the reader to Rule 6.2.) Similarly, Rule 6.2 Comment [2] notes that even appointed counsel is allowed to decline representation if the lawyer feels he or she is unable to handle the matter competently per Rule 1.1.

Along similar lines, ABA Model Rule 1.3, Diligence, states that “A lawyer shall act with reasonable diligence and promptness in representing a client.” Comment [3] addresses a common client complaint: Procrastination. The comment notes that this “professional shortcoming” is widely resented, as allowing too much time to elapse while handling a client’s case can adversely affect a client’s interests and result in mistakes such as overlooking the statute of limitations to the prejudice of the client, causing a client needless anxiety, and eroding the client’s confidence in the lawyer.

Confidentiality

Dealing with client information in the form of electronic client files often implicates the duty of confidentiality. This is particularly true in the age of electronic communication, where the fast pace of life often results in inadvertent disclosures, reckless use of public e-mail programs and other methods that may implicate client confidentiality.

Under California B&P Code Section 6068(e)(1) a lawyer has a duty “[t]o maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.”

In addition to California B&P regulations, all California attorneys are ethically bound by the California Rules of Professional Conduct. California Rule of Professional Conduct 3-100, Confidential Information of a Client, states in pertinent part that: “(A) A member shall not reveal information protected from disclosure by Business and Professions Code section 6068, subdivision (e)(1) without the informed consent of the client, or as provided in paragraph (B) of this rule.” Lest attorneys take B&P section 6068 too lightly, California B&P section 6103 states that violations of any of the duties as an attorney “constitute causes for disbarment or suspension.”

ABA Rule 1.6, Confidentiality of Information, provides that a lawyer may not reveal information relating to the representation of a client unless the client gives informed consent or the disclosure is impliedly authorized to carry out the representation.

Comment [16] to the rule explains that a lawyer must “act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer’s supervision.”

Comment [17] adds that, when transmitting confidential client information, a lawyer must take “reasonable precautions to prevent the information from coming into the hands of unintended recipients.”

Directly related to termination of representation, Comment [18] reminds lawyers that the duty of confidentiality lives on even after representation has been terminated.

CONCLUSION

Having the luxury of keeping client files electronically has facilitated the legal profession in many ways, but such is a luxury best reserved for the lawyer who is familiar with all of the applicable ethical rules. A working knowledge of the law and ethical rules governing the mechanics and limitations of dealing with client files after representation has concluded will allow you to interact in the physical and the virtual world effectively as well as ethically.

Good luck!

*This article does not constitute legal advice. Please shepardize all case law before using.

ABOUT THE AUTHOR:

Wendy L. Patrick is Chair of the California State Bar Committee on Professional Responsibility and Conduct (COPRAC) and immediate past chair of the San Diego County Bar Association Ethics Committee. She has her own ethics column in the San Diego Daily Transcript and writes and lectures on ethics nationally and internationally. Ms. Patrick is also a San Diego County deputy district attorney in the Sex Crimes and Stalking Division, and named as one of the 2010 Top Ten criminal attorneys in San Diego by the San Diego Daily Transcript and a 2010 Superlawyer.

Ms. Patrick can be reached at wendy.patrick@sdcda.org or at (619) 531-3260

[1] State Compensation Insurance Fund v. WPS Inc. (State Fund) (1999) 70 Cal.App.4^th 644, 656.