Legal Ethics Corner: When Turning Over a Client’s File, Don’t Forget to Include Electronic Data

Andrew Dimitriou, Dimitriou & Associates

One of the most difficult things is to lose a client. Sometimes it is for the best. However, when you lose a client and the attorney-client relationship ends, your obligations to the client do not end. See Formal Opinion 1992-127 by the California State Bar’s Committee on Professional Responsibility and Conduct (COPRAC).

Pursuant to California Rule of Professional Conduct 3-700(D)(1), an attorney whose employment has terminated shall:

“Subject to any protective order or non-disclosure agreement, promptly release to the client, at the request of the client, all the client papers and property. ‘Client papers and property’ includes correspondence, pleadings, deposition transcripts, exhibits, phys-ical evidence, expert’s reports, and other items reasonably necessary to the client’s representation, whether the client has paid for them or not.”

Further, even if the client has a copy of the file, the attorney is obligated to turn the file over. See Friedman v. State Bar, 50 Cal. 3d 235, 244 (Cal. 1990). Thus, an attorney’s obligation to turn over the file to the client is taken very seriously by the state bar and the courts.

Many attorneys feel that they only need to provide the written file. However, in 2007 COPRAC issued Formal Opinion 2007-174 which states in part

“3-700(D) expressly extends its coverage to ‘all the client papers and property.’ … It does not draw any distinction based on the form of any item, whether electronic or non-electronic.”

The opinion states that it would be unreasonable to draw a distinction between paper verses electronic material. The opinion argues that “client papers and property” is not a static concept and is evolving.

Attorneys should not focus or preoccupy themselves on the definition of a “file,” rather they should focus on what is necessary for the client for the client’s matter. If the electronic file material would be useful, helpful, or assist the client in prosecuting or pursuing the client’s interest in the matter or litigation, then, the opinion reasons, the attorney must provide the electronic file.

Lastly some attorneys will attempt to refuse to turn over the client file until a substitution of attorney is filed. This is dangerous. First the client file belongs to the client and the attorney has duty of communication to the client, including responding to reasonable requests for information and copies of significant documents. See CRPC 3-500 and Bus. & Prof. Code; § 6068 (m). Additionally, this could prejudice the client as access to the file is necessary for successor counsel to evaluate and decide how to proceed in the best interests of the client.

In sum, while it may be painful to lose a client, it is an attorney’s obligation to place the interests of the client ahead of his or own and to proceed in that manner, even when the client discharges the attorney. Attorneys must turn over the client file and this includes electronic file material. The attorney is, of course, entitled to keep a copy of the file for him or herself. I will leave it to another day to discuss issues about what constitutes an electronic file and the meta-data that it might contain.

About the author:

Firm principal Andrew Dimitriou handles all aspects of general civil litigation, with a particular emphasis in the areas of business, real estate, construction, and tax law. He is a member of BASF’s Legal Ethics Committee.