CABAR 2007

When a California attorney's employment terminates and the client demands electronic versions of e-mail, pleadings, discovery, the deposition and exhibit database, and transactional documents, must the attorney release them, and may the attorney refuse on the ground that they contain other-client metadata?

Short answer: Per California Formal Opinion 2007-174, yes. Former Rule 3-700(D)(1) extends to existing electronic items, with no 'balancing test' for client need versus attorney burden, and applies because the items either come within listed categories (correspondence, pleadings, deposition transcripts and exhibits) or are 'reasonably necessary to the client's representation' (discovery requests and responses, transactional documents). The attorney need not create electronic items or change applications, but must take reasonable steps to strip metadata reflecting other-client confidential information before release.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.

View original ethics opinion (PDF)

State Bar of California COPRAC Formal Opinion 2007-174: Electronic Versions of Client Files Upon Termination

Short answer: The opinion concludes that, upon termination of employment, former California Rule 3-700(D)(1) obligates the attorney to promptly release to the client, at the client's request, existing electronic versions of e-mail correspondence, pleadings, discovery requests and responses, an electronic deposition and exhibit database, and transactional documents. The obligation extends to electronic items as well as paper items, with no "balancing test" for the client's need versus the attorney's burden. The attorney is not obligated to create electronic items that do not exist or to change the application (e.g., from Word to WordPerfect). Before release, the attorney must take reasonable steps under Business and Professions Code section 6068(e)(1) to strip from each electronic item any metadata reflecting confidential information belonging to other clients.

Currency note

This opinion was issued in 2007, before the State Bar of California's adoption of the November 1, 2018 revisions to the Rules of Professional Conduct. The opinion interprets former Rule 3-700(D) and Business and Professions Code section 6068, subdivision (e)(1). Current California Rule 1.16 (declining or terminating representation, including the obligation to release the client's papers and property) and current Rule 1.6 (confidentiality) now address the same topics. Treat this page as historical context, not current guidance. Verify current rule text and any later California opinions on electronic file release and metadata before relying on any specific procedure.

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 hypothetical: Attorney A represented Client first in a transactional matter with BiotechCorp (producing transactional documents in a word-processing application) and then in litigation against Landlord (producing pleadings, discovery requests and responses, and an electronic database of deposition transcripts and exhibits). In both matters, e-mail correspondence was sent and received. Client now terminates Attorney A and demands all papers and property, including electronic versions of each category, intending to give them to Attorney B for reuse via cutting and pasting and for search efficiency. Attorney A refuses, claiming each item contains metadata reflecting confidential information of other clients. Attorney A does not invoke the work-product doctrine.

The committee's analysis proceeds in three steps.

First, former Rule 3-700(D) obligates an attorney whose employment has terminated to "promptly release to the client, at the request of the client, all the client papers and property," subject to any protective order or non-disclosure agreement. "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. The duty applies whether or not the client has paid for the items, and release must be at no cost (though the attorney may charge for copies the attorney retains). The committee read "all the client papers and property" as covering items in electronic form as well as non-electronic form, citing State Bar Formal Opinion 1994-134's recognition that "client papers and property" is not a static concept.

Second, applying that rule to the five categories: correspondence and pleadings fall within the listed categories of "correspondence" and "pleadings" expressly. Deposition and exhibit databases fall within "deposition transcripts" and "exhibits" by implication because the database, by definition, contains those items. Discovery requests and responses and transactional documents do not match any listed category expressly, but they qualify as items "reasonably necessary to the client's representation," which State Bar Formal Opinion 1992-127 defines as items "generated during the representation" for continuing use therein. Discovery may give rise to further discovery and may serve as exhibits; transactional documents are used to monitor performance under the agreement and any related agreements with third parties.

The committee rejected the "balancing test" used in Orange County Bar Association Formal Opinion 2005-01 (weighing client need against attorney expense), finding no support for it in the rule's text or extrinsic evidence, and noting that the attorney can avoid substantial expense by using commonly available electronic filing systems. The committee also held that the attorney need not release items in a different application from the one the attorney possesses, because the duty is to release items, not to create or convert them.

Third, the attorney's presumptive obligation under Rule 3-700(D) must be considered alongside the duty under Business and Professions Code section 6068(e)(1) to protect each client's confidential information. The attorney must take reasonable steps to strip metadata reflecting other-client confidential information from any electronic item before releasing it to the requesting client. Because Attorney A did not invoke the work-product doctrine, that doctrine is not implicated.

Common questions

Q: Does former California Rule 3-700(D) require release of electronic versions of client files at termination?

A: Per the opinion, yes. The rule expressly extends to "all the client papers and property" without distinction based on form. Items in electronic form are covered the same as items in paper form, citing State Bar Formal Opinion 1994-134's recognition that "client papers and property" is not a static concept.

Q: Which categories of electronic items must the attorney release?

A: Per the opinion, e-mail correspondence and pleadings fall within the listed categories of "correspondence" and "pleadings"; deposition and exhibit databases fall within "deposition transcripts" and "exhibits" by implication; discovery requests and responses and transactional documents are "reasonably necessary to the client's representation" under State Bar Formal Opinion 1992-127's definition.

Q: May the attorney refuse on the ground that providing electronic versions is burdensome?

A: Per the opinion, no. The committee rejected the "balancing test" applied in Orange County Bar Association Formal Opinion 2005-01, finding no support for it in the rule's text. The committee added that an attorney can usually avoid substantial expense by using commonly available electronic filing systems.

Q: Must the attorney create electronic versions or convert files to the client's preferred application?

A: Per the opinion, no. The attorney's obligation is to release items that exist, not to create them or to change the application (e.g., from Word to WordPerfect). The attorney is only obligated to release items in the application in which the attorney possesses them.

Q: What does the attorney have to do about metadata that reflects other clients' confidential information?

A: Per the opinion, the attorney must take reasonable steps to strip such metadata before releasing the electronic items. The duty arises from Business and Professions Code section 6068(e)(1), which protects each client's confidential information; the presumptive obligation to release the items is conditioned on satisfying that duty as to other clients.

Q: Did the committee address the work-product doctrine?

A: Per the opinion, no, because Attorney A did not invoke it. The committee expressly noted that the work-product doctrine of Code of Civil Procedure section 2018.010 et seq. was not implicated on the facts presented.

Background and rules framework

The opinion interprets former California Rule 3-700(D) (release of client papers and property upon termination of employment) and Business and Professions Code section 6068, subdivision (e)(1) (duty to maintain client confidence and preserve client secrets). Functionally, the analysis maps to current California Rules 1.16 (declining or terminating representation, with the duty to surrender client papers and property in Rule 1.16(e)) and 1.6 (confidentiality). The committee's discussion takes "client papers and property" as a concept whose content changes with circumstances, including the form (paper or electronic) in which items exist.

Citations and references

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

Former California Rule 3-700(A)(2) (avoidance of reasonably foreseeable prejudice)
Former California Rule 3-700(D)(1) (release of client papers and property)

Statutes:

California Business and Professions Code section 6068, subdivision (e)(1) (duty to maintain client confidence and preserve client secrets)
California Code of Civil Procedure section 2018.010 et seq. (attorney work-product doctrine, noted but not implicated)
California Rules of Court 342(i) (separate statement on summary judgment; cited by analogy for the principle that a party need not create a new electronic version for transmission)

Cases:

Fracasse v. Brent (1972) 6 Cal.3d 784, client may terminate attorney's employment freely
Academy of California Optometrists, Inc. v. Superior Court (1975) 51 Cal.App.3d 999, same
People ex rel. Deukmejian v. Brown (1981) 29 Cal.3d 150, attorney owes a limited duty of loyalty after termination
Wutchumna Water Co. v. Bailey (1932) 216 Cal. 564, same
Jicarilla Apache Nation v. United States (Fed. Cl. 2004) 60 Fed. Cl. 413, approving production of electronic records in the format the producing party routinely uses or stores

Other opinions and authorities cited:

California State Bar Formal Opinion 1992-127 (defining "reasonably necessary to the client's representation" as items "generated during the representation")
California State Bar Formal Opinion 1994-134 (treating "client papers and property" as a non-static concept; ethical responsibility turns on avoiding reasonably foreseeable prejudice)
Los Angeles County Bar Association Formal Opinion 362 (1976)
San Diego County Bar Association Formal Opinion 2001-1 (attorney may not withhold client papers for nonpayment)
Bar Association of San Francisco Formal Opinion 1990-1 (release of any item necessary to avoid reasonably foreseeable prejudice)
Bar Association of San Francisco Formal Opinion 1996-1 (reaffirming Opinion 1990-1)
Orange County Bar Association Formal Opinion 2005-01 (proposing a balancing test the committee rejects)
New Hampshire Bar Association Ethics Committee Opinion 2005-06/3 (2006) (file includes paper and electronic forms)
Illinois State Bar Association Advisory Opinion 01-01 (2001) (similar conclusion regarding electronic files and metadata)

Source

Original opinion text

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

THE STATE BAR OF CALIFORNIA
STANDING COMMITTEE ON
PROFESSIONAL RESPONSIBILITY AND CONDUCT
FORMAL OPINION NO. 2007-174

ISSUE: Is an attorney ethically obligated, upon termination of employment, promptly to release to a client, at the client's request, (1) an electronic version of e-mail correspondence, (2) an electronic version of the pleadings, (3) an electronic version of discovery requests and responses, (4) an electronic deposition and exhibit database, and/or (5) an electronic version of transactional documents?

DIGEST: An attorney is ethically obligated, upon termination of employment, promptly to release to a client, at the client's request: (1) an electronic version of e-mail correspondence, because such items come within a category subject to release; (2) an electronic version of the pleadings, because such items too come within a category subject to release; (3) an electronic version of discovery requests and responses, because such items are subject to release as reasonably necessary to the client's representation; (4) an electronic deposition and exhibit database, because such an item itself contains items that come within categories subject to release; and (5) an electronic version of transactional documents, because such items are subject to release as reasonably necessary to the client's representation. The attorney's ethical obligation to release any electronic items, however, does not require the attorney to create such items if they do not exist or to change the application (e.g., from Word (.doc) to WordPerfect (.wpd)) if they do exist. Prior to release, the attorney is ethically obligated to take reasonable steps to strip from each of these electronic items any metadata reflecting confidential information belonging to any other client.

AUTHORITIES INTERPRETED: Rule 3-700(D) of the Rules of Professional Conduct of the State Bar of California. Business and Professions Code section 6068, subdivision (e)(1).

STATEMENT OF FACTS

Attorney A was originally retained by Client to represent Client in negotiating and executing an agreement with BiotechCorp, under which Client entrusted a secret invention to BiotechCorp for development, patenting, and commercialization in exchange for payment of royalties. In the course of the representation, Attorney A prepared transactional documents, including the agreement itself, using a commonly available word-processing computer program to create manipulable files, and preserving such files in a readily searchable electronic document management system, in both final form and antecedent drafts. During the representation, Attorney A sent and received various e-mail correspondence.

Subsequently, Attorney A was retained by Client in a separate matter to file and prosecute an action on Client's behalf against Landlord relating to Landlord's breach of a lease to commercial premises occupied by Client. In the course of the representation, Attorney A prepared pleadings and discovery requests and responses, using the same commonly available word-processing computer program to create manipulable files, and preserving such files in the same readily-searchable electronic document management system, in both final form and antecedent drafts. Attorney A also created an electronic database, which is electronically searchable by word queries and other queries, containing deposition transcripts and exhibits. During this representation too, Attorney A sent and received various e-mail correspondence.

Client has now chosen to terminate Attorney A's employment and to employ Attorney B in Attorney A's place. Client has requested Attorney A to release to Client all of Client's papers and property. In particular, Client has requested an electronic version of the pleadings in the action against Landlord, expressing an intent to make them available to Attorney B for reuse, by electronic "cutting" and "pasting," in drafting new documents in the litigation as it progresses, and an electronic version of the discovery requests and responses, expressing the same intent. Client has also requested the electronic deposition and exhibit database, expressing an intent to make it available to Attorney B for use in discovery, trial preparation, and trial itself. Client has additionally requested an electronic version of the transactional documents in the BiotechCorp matter, expressing an intent to make them available to Attorney B to safeguard Client's interests as questions or disputes arise concerning the scope and purpose of the agreement, including specifically BiotechCorp's obligation to pay royalties under licensing agreements. As to each representation, Client has requested an electronic version of the e-mail correspondence, for ease of searching its contents. Attorney A has refused to release any of these items, claiming that each contains metadata reflecting confidential information belonging to other clients. Attorney A has made no assertion in support of his refusal based on the attorney work product doctrine of section 2018.010 et seq. of the Code of Civil Procedure.

DISCUSSION

Rule 3-700(D) of the Rules of Professional Conduct Obligates an Attorney Promptly to Release Client Papers and Property, at the Client's Request, Upon Termination of Employment

Rule 3-700(D) of the Rules of Professional Conduct ("rule 3-700(D)") provides that, "[s]ubject to any protective order or non-disclosure agreement," an attorney "whose employment has terminated shall . . . . 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 . . . ." (Rule 3-700(D) & (D)(1).) The attorney must make such release of client papers and property at no cost to the client.

Rule 3-700(D)'s scope is evident. Among "[c]lient papers and property," the rule includes certain items coming within listed categories and also any other items that are "reasonably necessary to the client's representation." (Rule 3-700(D)(1).)

Rule 3-700(D)'s purposes include respecting the client's ownership interest in his or her papers and property and preventing "reasonably foreseeable prejudice" to the client's interests generally. (Rule 3-700(A)(2).)

The obligation imposed on an attorney by rule 3-700(D) with respect to the prompt release of a client's papers and property, at the client's request, upon termination of employment, and the scope and purpose of that obligation, are consistent with the principles that a client may terminate an attorney's employment freely, and that the attorney owes a duty of loyalty to the client, albeit limited, even after termination of employment.

In imposing on an attorney an obligation promptly to release a client's papers and property, at the client's request, upon termination of employment, rule 3-700(D) expressly extends its coverage to "all the client papers and property." (Rule 3-700(D), italics added.) It does not draw any distinction based on the form of any item, whether electronic or non-electronic. Neither can it reasonably be read to do so. That is because "client papers and property" is not a "static" "concept," but rather one whose "content will change depending upon circumstances," covering items in electronic form as well as non-electronic form.

Rule 3-700(D) Obligates an Attorney, Upon Termination of Employment, Promptly to Release to a Client, at the Client's Request, (1) An Existing Electronic Version of E-mail Correspondence, (2) Existing Electronic Versions of the Pleadings, (3) Existing Electronic Versions of Discovery Requests and Responses, (4) Existing Electronic Deposition and Exhibit Databases, and (5) Existing Electronic Versions of Transactional Documents

The question before the Committee is whether, upon termination of employment, an attorney is obligated by rule 3-700(D)(1) promptly to release to a client, at the client's request, (1) an electronic version of e-mail correspondence, (2) electronic versions of the pleadings, (3) electronic versions of discovery requests and responses, (4) electronic deposition and exhibit databases, and (5) electronic versions of transactional documents.

As for the nature of the items in question: Among the "client papers and property" included in rule 3-700(D)(1), correspondence and pleadings, respectively, come within the listed category of "correspondence" and "pleadings" expressly. Likewise, deposition and exhibit databases come within the listed categories of "deposition transcripts" and "exhibits" by implication, inasmuch as deposition and exhibit databases, by definition, contain deposition transcripts and exhibits. The same, however, cannot be said of discovery requests and responses or transactional documents, which do not correspond to any listed category either expressly or by implication. Nevertheless, discovery requests and responses and transactional documents comprise items that are "reasonably necessary to the client's representation." (Rule 3-700(D)(1).) An item is "reasonably necessary to the client's representation" if it is "generated during the representation" for continuing use therein. Discovery requests and responses satisfy this definition, since they may give rise to further discovery requests and responses and may also be included as exhibits to motions and as exhibits at trial. Transactional documents satisfy this definition as well, since they are used for purposes including monitoring performance under the original agreement underlying the transaction in question and any related agreement between the parties to that transaction and third parties who subsequently become involved.

As for the form of the items in question, that proves immaterial. As explained, rule 3-700(D)(1) expressly extends its coverage to "all the client papers and property," without distinction based on the form of any item, whether electronic or non-electronic.

In light of the foregoing, the Committee answers the question before it in the affirmative, concluding that, upon termination of employment, an attorney is indeed obligated by rule 3-700(D)(1) promptly to release to a client, at the client's request, (1) an electronic version of e-mail correspondence, (2) electronic versions of the pleadings, (3) electronic versions of discovery requests and responses, (4) electronic deposition and exhibit databases, and (5) electronic versions of transactional documents.

In concluding as it does, the Committee believes that, at least as a general matter, an attorney's obligation under rule 3-700(D)(1) to release items in electronic form is not subject to a "balancing test," under which the client's "need for the . . . electronic [versions]" must be weighed against the "expense (both money and time) to the attorney of having to copy and/or transfer . . . electronic [versions]." The Committee discerns no support for the applicability of a "balancing test" either in the rule itself, which is silent about the issue, or in any extrinsic evidence bearing on the rule's meaning. In addition, the Committee notes that an attorney usually has it within his or her power to avoid incurring any substantial expense in releasing electronic versions of the client's papers and property by putting in place any one of many commonly available electronic filing systems.

The Committee also believes that whenever an attorney is obligated by rule 3-700(D)(1) to release items in electronic form, the attorney is not obligated to release them in any application (e.g., Word (.doc) or WordPerfect (.wpd)) other than the application in which the attorney possesses them. That is because the attorney's obligation is to release items, not to create them or to change the application.

Rule 3-700(D) Obligates Attorney A, Upon Termination of Employment, Promptly to Release to Client, at Client's Request, (1) the Existing Electronic Version of E-mail Correspondence, (2) the Existing Electronic Version of the Pleadings, (3) the Existing Electronic Version of Discovery Requests and Responses, (4) the Existing Electronic Deposition and Exhibit Database, and (5) the Existing Electronic Version of Transactional Documents, But Only After Attorney A Takes Reasonable Steps to Strip Such Items of Metadata Reflecting Confidential Information Belonging to Other Clients

It follows from the foregoing that, upon termination of employment, Attorney A is presumptively obligated by rule 3-700(D)(1) promptly to release to Client, at Client's request, an electronic version of e-mail correspondence, an electronic version of the pleadings, an electronic version of discovery requests and responses, and the electronic deposition and exhibit database, all in Client's action against Landlord, and also an electronic version of the transactional documents in the BiotechCorp matter.

Attorney A's presumptive obligation under rule 3-700(D), however, must be considered in light of Attorney A's claim that each of the electronic items in question contains metadata reflecting confidential information belonging to other clients. That is because an attorney is obligated under subdivision (e)(1) of section 6068 of the Business and Professions Code to protect each client's confidential information. Under the compulsion of that obligation, Attorney A would have to take reasonable steps to strip any metadata reflecting confidential information belonging to other clients from any of the electronic items prior to releasing them to Client. Inasmuch as Attorney A has not invoked the attorney work product doctrine, that doctrine is not implicated on the facts presented.

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 responsibilities, or any member of the State Bar.