Does class counsel have a duty under Rule 3-700(D) to turn over papers and property of the class to a member who opts out of the certified class to pursue an independent action?

Currency note

This opinion was issued in 1995, before California's November 1, 2018 adoption of the renumbered Rules of Professional Conduct. Former Rule 3-700 corresponds to current Rule 1.16; former Rule 3-700(D)(1) corresponds to current Rule 1.16(e)(1). 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 Treat this page as historical context, not current guidance.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.

View original opinion

Plain-English summary

The committee considered whether class counsel must produce class-action papers to a former member of the certified class who opted out and retained separate counsel. The committee identified the client's absolute right to discharge an attorney (Fracasse v. Brent), qualified in litigation by any required court permission (Rule 3-700(A)(1)). On substitution, prior counsel must turn over to the client or successor counsel all files in the matter, including confidential documents and work product for which the client has been billed or will be billed (Rule 3-700(D)(1)).

The committee identified the question as whether an opt-out class member qualifies as a "client" for purposes of Rule 3-700(D)(1). The committee distinguished pre-certification "putative" class members from post-certification class members. Citing Resnick v. American Dental Ass'n (dictum), the committee identified that before class certification, potential class members are not yet represented by class counsel. After certification, the members are clients of class counsel in the full sense (Resnick; Kleiner v. First National Bank; Van Gemert v. Boeing Co.; Fulco v. Continental Cablevision; Rental Car v. Westinghouse Elec. Corp.). The named class representatives are clients of class counsel from the outset.

The committee identified that the lack of an attorney-client relationship is "especially true" for a class member who opts out after class certification. The opt-out class member "in effect tells the lawyer that class member does not want the lawyer to represent him or her in the action, and declines such representation." The committee identified that, although the opt-out is technically a full member of the certified class for some period before exercising the opt-out right, this is not a sufficient basis to give the opt-out member a right to obtain copies of class-counsel papers, especially papers protected by attorney-client privilege or otherwise confidential.

The committee identified the one exception: for documents class counsel received from the opt-out class member, the result is different, and class counsel has a duty to turn those papers over to the opt-out member or that person's new counsel under Rule 3-700(D).

In footnotes, the committee identified that the opinion does not apply to a named plaintiff (a client in all respects) and identified Roper v. Consurve as a duty class counsel does have to putative class members (no settlement on named-plaintiff behalf alone during pending certification absent court approval after notice).

Common questions

Q: Must California class counsel turn over the class's papers to a member who opts out of the certified class?

A: Per the opinion, no. The committee identified that an opt-out class member is not a "client" within Rule 3-700(D)(1) for purposes of the class's papers and property.

Q: Does class counsel have any duty to the opt-out class member regarding papers?

A: Per the opinion, yes for one category: any papers or property class counsel received from the opt-out class member must be returned under Rule 3-700(D).

Q: Does the result differ for a named plaintiff who decides to discontinue?

A: Per the opinion (footnote), yes. Named plaintiffs are clients in all respects, so the standard Rule 3-700(D) file-transfer duty applies.

Q: Are pre-certification putative class members "clients" of class counsel?

A: Per the opinion, no. The committee identified that putative class members are not yet represented by class counsel before certification, citing Resnick. The committee identified post-certification members as clients in the full sense.

Q: Does class counsel owe any duty to putative class members?

A: Per the opinion (footnote), yes; class counsel may not settle on the named plaintiffs' behalf alone while certification is pending, absent court approval after notice to the putative class (Roper v. Consurve).

Background and rules framework

The opinion interprets former California Rule of Professional Conduct 3-700 (termination of employment), particularly subdivision (D) (return of client papers), with reference to Federal Rule of Civil Procedure 23 (class actions) and the relevant federal and state class-action authorities. The opinion turns on whether the opt-out class member qualifies as a "client" under Rule 3-700(D)(1).

Citations and references

Rules of Professional Conduct (former):

• California Rule 3-700 (termination of employment, return of papers)

Cases:

• Fracasse v. Brent, 6 Cal.3d 784 (Cal. 1972), absolute right to discharge counsel
• Fulco v. Continental Cablevision, Inc., 789 F.Supp. 45 (D. Mass. 1992)
• Kleiner v. First National Bank, 751 F.2d 1193 (11th Cir. 1985)
• Rental Car v. Westinghouse Elec. Corp., 496 F.Supp. 373 (D. Mass. 1980)
• Resnick v. American Dental Ass'n, 95 F.R.D. 372 (N.D. Ill. 1982), pre-certification members not yet represented
• Roper v. Consurve, Inc., 578 F.2d 1106 (5th Cir. 1978), duties to putative class members
• Van Gemert v. Boeing Co., 590 F.2d 433 (2d Cir. 1978)

Other:

• 7A & 7B Charles A. Wright et al., Federal Practice and Procedure (2d ed. 1986 & Supp. 1994)
• Manual for Complex Litigation section 30 (2d ed. 1985)
• Herbert B. Newberg & Alba Conte, Newberg on Class Actions (3d ed. 1992 & Supp. 1994)

See also

• LACBA Opinion 493: Disputes Between Former Clients Over Original Files
• LACBA Opinion 491: Destruction of Deceased Client's Files
• LACBA Opinion 475: Disposition of Client Files After Engagement Ends

Source

• Landing page: https://lacba.org/?pg=ethics-opinions
• Original PDF: https://lacba.org/docDownload/2010939