When a criminal defense lawyer has been relieved by successor appellate counsel, what must the former trial lawyer turn over and what must she discuss, including questions touching on potentially ineffective assistance?

State Bar of California COPRAC Formal Opinion 1992-127: Criminal Defense Trial Counsel's Duty to Cooperate with Appellate Counsel

Short answer: The opinion concluded that a criminal defense attorney whose representation has terminated must turn over the entire client file to the client or successor counsel (including work product, attorney impressions, conclusions, opinions, legal research, and theories), and must volunteer information not reduced to writing where ignorance might prejudice the client. In the criminal-appellate context, trial counsel must fully and candidly respond to appellate counsel's questions, including questions that may reveal ineffective assistance.

Currency note

This opinion was issued in 1992, under the former California Rules of Professional Conduct and before the State Bar of California's adoption of the November 1, 2018 revisions. The opinion interprets former Rules 3-400, 3-700(A)(2), and 3-700(D)(1). The substance is now in current California Rules 1.16 (declining and terminating representation, including file return) and 1.9 (duties to former clients). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the State Bar of California's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.

View original opinion

Plain-English summary

The committee considered a criminal defense attorney whose client had been convicted and whose appeal was being handled by successor counsel. Appellate counsel asked trial counsel questions about the representation below, including matters of trial strategy. Trial counsel asked whether she had an ethical duty to respond.

The committee opined that an attorney's obligation to the client does not cease with the termination of the employment relationship (citing Kallen v. Delug, 157 Cal.App.3d 940 (1984)). Former Rule 3-700(A)(2) prohibits the attorney from withdrawing without taking reasonable steps to avoid prejudice. Former Rule 3-700(D)(1) required the attorney, upon termination, to release to the client all "client papers and property," defined to include correspondence, pleadings, deposition transcripts, exhibits, physical evidence, expert reports, "and other items reasonably necessary to the client's representation," whether the client has paid for them or not.

The committee opined that the file release includes attorney work product. Reasoning that the attorney's impressions, conclusions, opinions, legal research, and legal theories are "reasonably necessary to the client's representation," the committee concluded that work product must be turned over so the client does not have to pay successor counsel to regenerate it. The committee opined this conclusion is supported by the work-product cases (citing Weiss v. Marcus, 51 Cal.App.3d 590 (1975); Lasky, Haas, Cohler and Munter v. Superior Court, 172 Cal.App.3d 264 (1985); Spivey v. Zant, 683 F.2d 881 (5th Cir. 1982); Roberts v. Heim, 123 F.R.D. 614 (N.D. Cal. 1988)) and by ABA Model Code EC 2-32. In a footnote, the committee opined that if the attorney wishes to retain copies, the attorney bears the reproduction cost unless the fee contract provided otherwise (citing San Diego Co. Bar Op. 1977-3; Bar Ass'n of San Francisco Op. 1984-1).

The committee opined that where information has not been reduced to writing, former Rule 3-700(A)(2)'s prohibition on prejudice requires the attorney to volunteer information of such import that ignorance might prejudice the client (citing Bar Ass'n of San Francisco Op. 1990-1). The amount of voluntary assistance varies; where extensive effort would be required, the attorney may properly contract with the client for compensation (citing San Francisco Op. 1984-1 and LACBA Op. 360).

The committee opined that the criminal-appellate context is qualitatively different because the client possesses a constitutional right to effective assistance of counsel on appeal (citing Powell v. Alabama, 287 U.S. 45 (1932); Evitts v. Lucey, 469 U.S. 387 (1985)). Trial counsel's refusal to cooperate may force appellate counsel to file habeas proceedings prematurely, to the client's detriment. The committee opined that trial counsel must fully and candidly discuss matters relating to the representation with appellate counsel and respond to appellate counsel's questions, even if doing so would disclose ineffective assistance, citing the duty of complete fidelity (citing Clancy v. State Bar, 71 Cal.2d 140 (1969); State Bar Formal Op. 1984-83). The duty to the client survives termination of the relationship.

The committee opined that former Rule 3-400 (limiting prospective liability) did not apply here because the client was no longer a current client (citing Donnelly v. Ayer, 183 Cal.App.3d 978 (1986)). The opinion expressly does not address ethical duties triggered by knowledge of the former client's criminal acts.

Common questions

Q: What must the trial lawyer turn over to successor appellate counsel?

A: Per the opinion, the entire client file, including pleadings, transcripts, exhibits, expert reports, correspondence, and "other items reasonably necessary to the client's representation," which the committee opined includes attorney work product (impressions, conclusions, opinions, research, and legal theories).

Q: Does work product have to be turned over?

A: Per the opinion, yes. The committee opined that Weiss v. Marcus and the other cited cases establish that the work product belongs to the client and the rule's "reasonably necessary" language includes it.

Q: Who pays for copies the lawyer wants to retain?

A: Per the opinion, the lawyer, unless the fee contract provided otherwise (citing San Diego Co. Bar Op. 1977-3; San Francisco Op. 1984-1).

Q: Must the lawyer answer appellate counsel's questions, including ones that suggest ineffective assistance?

A: Per the opinion, yes. The committee opined that the constitutional right to effective assistance of counsel on appeal and the duty of complete fidelity to the client require full and candid responses, even if disclosure suggests ineffective assistance.

Q: Can the lawyer charge for extensive cooperation that goes beyond turning over the file?

A: Per the opinion, yes. The committee opined that where assistance requires extensive effort, the lawyer may properly contract with the client for compensation.

Q: Does Rule 3-400 limit the lawyer's liability for this cooperation?

A: Per the opinion, no. The committee opined that Rule 3-400 prohibits limiting prospective liability to a current client and does not apply once the relationship has terminated (citing Donnelly v. Ayer).

Background and rules framework

The opinion interprets former California Rules 3-400 (limiting prospective liability), 3-700(A)(2) (avoiding prejudice on withdrawal), and 3-700(D)(1) (release of client papers and property), and references California Code of Civil Procedure section 2018(f) (work-product privilege not against the client). The substance is now in current California Rules 1.16 and 1.9.

Citations and references

Rules of Professional Conduct (former, in effect at time of opinion):

• Former California Rule 3-400
• Former California Rule 3-700(A)(2)
• Former California Rule 3-700(D)(1)
• ABA Model Code EC 2-32 (referenced)

Statutes:

• Cal. Code Civ. Proc. section 2018(f)

Cases:

• Kallen v. Delug, 157 Cal.App.3d 940 (1984), post-termination obligations
• Weiss v. Marcus, 51 Cal.App.3d 590 (1975), work product belongs to client
• Lasky, Haas, Cohler and Munter v. Superior Court, 172 Cal.App.3d 264 (1985), client access to work product
• Spivey v. Zant, 683 F.2d 881 (5th Cir. 1982), work-product privilege not against client
• Roberts v. Heim, 123 F.R.D. 614 (N.D. Cal. 1988), California analog
• Powell v. Alabama, 287 U.S. 45 (1932), effective assistance of counsel
• Evitts v. Lucey, 469 U.S. 387 (1985), effective assistance on appeal
• Clancy v. State Bar, 71 Cal.2d 140 (1969), duty of complete fidelity
• Donnelly v. Ayer, 183 Cal.App.3d 978 (1986), Rule 3-400 does not apply after termination

Other opinions cited:

• Cal. State Bar Formal Op. 1983-71 (ABA materials as persuasive)
• Cal. State Bar Formal Op. 1984-83 (fidelity to client)
• San Diego Co. Bar Op. 1977-3 (reproduction cost)
• Bar Ass'n of San Francisco Op. 1984-1 (reproduction cost; charging for cooperation)
• Bar Ass'n of San Francisco Op. 1990-1 (volunteering information)
• LACBA Formal Op. 360 (charging for cooperation)

See also

• CA Ethics Op. 1989-111: Withdrawal When Client Cannot Be Located

Source

• Landing page: https://www.calbar.ca.gov/legal-professionals/ethics-compliance-practice-resources/ethics/ethics-opinions
• Source HTML: https://www.calbar.org/ethics/Opinions/1992-127.htm

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Ethics Opinions - FORMAL OPINION NO. 1992-127

Editor's Note:

State Bar Ethics Opinions cite the applicable California Rules of Professional Conduct in effect at the time of the writing of the opinion. Please refer to the California Rules of Professional Conduct Cross Reference Chart for a table indicating the corresponding current operative rule. There, you can also link to the text of the current rule.

THE
STATE BAR OF CALIFORNIA

STANDING COMMITTEE ON

PROFESSIONAL RESPONSIBILITY AND CONDUCT
FORMAL OPINION 1992-127

ISSUE:

To what extent must a criminal defense attorney, having been relieved by successor counsel, cooperate with new counsel?

DIGEST:

A criminal defense attorney must turn over to the client or to successor counsel written materials generated during the representation of the client as well as all pleadings, reports, and correspondence regarding the case. The attorney must also provide the client or successor counsel with other information not reduced to writing if the failure to provide the information might result in prejudice to the client.

AUTHORITIES INTERPRETED:

Rules 3-400, 3-700(A)(2) and 3-700(D)(1) of the Rules of Professional Conduct of the State Bar of California.

DISCUSSION

The Committee has been asked to delineate the ethical responsibility of a criminal defense attorney, once having been relieved by successor counsel, to cooperate with new counsel. In the situation specifically presented, the client has been convicted and new counsel will be handling the appeal. Appellate counsel has asked trial counsel questions regarding the representation below, including matters of strategy at the trial level. Trial counsel has asked the Committee if she has an ethical duty to respond to these inquiries.1

Generally, ethical obligations with respect to clients arise as a result of the employment relationship. In the situation presented, the attorney-client relationship has terminated. However, an attorney's obligation to her client does not cease with the termination of the employment relationship.2 Regardless of how or why the attorney-client relationship has terminated, Rule of Professional Conduct 3-700(A)(2) provides:

A member shall not withdraw from employment until the member has taken reasonable steps to avoid prejudice to the rights of the client, including giving due notice to the client, allowing time for the employment of other counsel, complying with rule 3-700(D), and complying with other applicable laws and rules.

Pursuant to rule 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, physical evidence, expert's reports, and other items reasonably necessary to the client's representation, whether the client has paid for them or not.

Thus, the attorney must turn over all papers and property in the client's file to the client or to successor counsel.3 This would include the entire contents of the file, not just the pleadings, depositions and exhibits in the file, and includes work product reasonably necessary to the client's defense. The rule speaks of "other items reasonably necessary to the clients representation . . ." and these "items" include attorney work product. In addition, because the attorney's obligation upon withdrawal is to "avoid prejudice to the rights of the client," the attorney must provide the client with items generated during the representation so that the client does not have to hire new counsel to regenerate these same items. The attorney's impressions, conclusions, opinions, legal research, and legal theories prepared in the client's underlying case ordinarily are "reasonably necessary to the client's representation."

This conclusion is supported by cases construing the work product privilege. In Weiss v. Marcus (1975) 51 Cal.App.3d 590 [124 Cal.Rptr. 297], the court held that the work product of the discharged attorney belongs to the client, whether the client has paid for it or not. In Lasky, Haas, Cohler and Munter v. Superior Court (1985) 172 Cal.App.3d. 264, 279 [218 Cal. Rptr. 205], the court noted that "[t]here are strong ethical public policy considerations for concluding that the client has an absolute right of access to all work generated by his attorney in representing the client's interests."4 In Spivey v. Zant (5th. Cir. 1982) 683 F.2d 881, the court held that the work product privilege is designed to prevent a client's adversary from obtaining materials prepared by the attorney on behalf of the client and did not prohibit the client from gaining access to his own file. In Roberts v. Heim (N.D. Cal 1988) 123 F.R.D. 614, the court found that the reasoning in Zant applied under the California law relating to the work product privilege.

This reasoning is in accord with Ethical Consideration 2-32 of the American Bar Association Model Code of Professional Responsibility which provides that:

A lawyer should not withdraw without considering carefully and endeavoring to minimize the possible adverse effect on the rights of his client as a result of his withdrawal. Even when he justifiably withdraws, a lawyer should protect the welfare of his client by giving due notice of his withdrawal, suggesting the employment of other counsel, delivering to the client all papers and property to which the client is entitled, cooperating with counsel subsequently employed, and otherwise endeavoring to minimize the possibility of harm . . . . (Emphasis added.)5

Where these items have not been reduced to writing, the attorney's obligation to the client remains to "avoid prejudice to the rights of the client." Where the information is of such import that ignorance of it might result in such prejudice, the attorney must volunteer the information. (See Bar Association of San Francisco Ethics Opinion No. 1990-1.) The amount and extent of this voluntary assistance to the client will vary from case to case, and in situations that would require extensive effort to be undertaken by former counsel, it would be proper to contract with the client to be paid for this assistance if the work requested requires more than just turning over the client papers and property. (See Bar Association of San Francisco Ethics Opinion No. 1984-1 and Los Angeles County Bar Association Formal Ethics Opinion No. 360.)

This conclusion is based on the specific scenario presented to the Committee — a criminal case where appellate counsel is seeking information in the possession of trial counsel. This situation is qualitatively different from other attorney-client relationships, because the client possesses the Constitutional right to the effective assistance of counsel. (See, e.g., Powell v. Alabama (1932) 287 U.S. 45 [53 S.Ct. 55].) This Constitutional right to the effective assistance of counsel includes the right to effective assistance of counsel on appeal.6 Trial counsel should not undermine that right by refusing to cooperate with appellate counsel.

In the criminal context, appellate counsel has a duty to identify arguable issues and to raise them on direct appeal or in related writ proceedings. Full and prompt disclosure by trial counsel of matters which may not be in the record provides for expeditious processing of the client's case. Where trial counsel refuses to cooperate with the investigation of a claim of ineffective assistance of counsel, the end result may be that formal habeas proceedings may be instituted prematurely by appellate counsel, and this may work to the detriment of the client. In such situations, trial counsel's refusal to cooperate may harm the client, and by harming the client, counsel is violating the ethical duty she owes her client.

We believe that the Rules of Professional Conduct impose a duty upon trial counsel to fully and candidly discuss matters relating to the representation of the client with appellate counsel and to respond to the questions of appellate counsel, even if to do so would be to disclose that trial counsel failed to provide effective assistance of counsel. This decision is in accord with the general rule that the attorney owes a duty of complete fidelity to the client and to the interests of the client. (See Clancy v. State Bar (1969) 71 Cal.2d 140 [454 P.2d 329]; see also State Bar Formal Opinion No. 1984-83.) And, inasmuch as the attorney's duty to the client survives the termination of the attorney-client relationship, the fiduciary duty to the former client requires the attorney to protect the interests of the client and make appropriate disclosure.

It is the opinion of the Committee that the attorney's obligation to cooperate with successor counsel is grounded in rule 3-700, and that the original attorney is obligated to assist her former client by providing him or her with all materials generated as a result of the representation. Where the need arises for successor counsel to learn matters that have not been reduced to writing, the original attorney should provide this information to the client and to successor counsel, and if such assistance would require extensive effort from former counsel, the attorney may properly seek compensation for such effort.7

This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of the State Bar of California. It is advisory only. It is not binding upon the courts, the State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibility or any member of the State Bar.

1 This opinion does not address any ethical duties the attorney might have if the attorney knows of any criminal acts committed by the former client.

2 This is true no matter which party has terminated the relationship. (See Kallen v. Delug (1984) 157 Cal.App.3d 940, 950 [203 Cal.Rptr. 879].)

3 Should the attorney wish to retain copies of these materials, the attorney should bear the cost of reproduction, unless an alternative arrangement was made in the fee contract. In so finding, we agree with the opinions of the San Diego County Bar Association Ethics Committee and the Legal Ethics Committee of the Bar Association of San Francisco. (See San Diego County Bar Association Ethics Opinion No. 1977-3; Bar Association of San Francisco Ethics Opinion No. 1984-1.)

4 The recent amendment to Code of Civil Procedure section 2018, subdivision (f), makes it clear that there is no work-product privilege as against one's client or former client in an action alleging a breach of the attorney's duty to the client arising out of the attorney-client relationship. The ethical responsibilities of the attorney, however, go beyond the evidentiary issues of the Code of Civil Procedure section 2018.

5 The American Bar Association Model Code of Professional Responsibility, like sister state rules and court opinions, is not binding in California, although it may be persuasive in those instances where there is no controlling Rule of Professional Conduct, statute or court ruling in California. (See State Bar Formal Opinion No. 1983-71.)

6 Evitts v. Lucey (1985) 469 U.S. 387 [105 S.Ct. 830].

7 The Committee believes that Rule of Professional Conduct 3-400 does not apply to the present situation. In the present situation, the client is no longer a current client of the member. Rule 3-400 prohibits a member from contracting "with a client prospectively" to limit the attorney's liability and does not speak of a former client. In Donnelly v. Ayer (1986) 183 Cal.App.3d 978 [228 Cal.Rptr. 764], the court construed the rule as not applying in a situation where the attorney-client relationship has been terminated. Our decision here is not grounded upon rule 3-400.