February 2012 | Earn one hour of MCLE Credit in Legal Ethics
By Wendy L. Patrick
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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.
article explores some of the ethical rules and opinions that apply to the
contemporary issue of returning client files after termination of
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
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.”
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.
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.
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.
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
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.”
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).
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.
Potential Rules When Dealing With Client Files
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.
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.
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 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.
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.
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  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.”
, 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.
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.”
 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  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.
similar lines, ABA Model Rule 1.3, Diligence, states that “A lawyer shall act
with reasonable diligence and promptness in representing a client.” Comment 
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.
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.”
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.”
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
 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.”
 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.”
related to termination of representation, Comment  reminds lawyers that the
duty of confidentiality lives on even after representation has been
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.
article does not constitute legal advice. Please shepardize all case law
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.
Patrick can be reached at email@example.com or at (619)
 State Compensation Insurance Fund v. WPS Inc. (State Fund) (1999)
70 Cal.App.4th 644, 656.