LACBA September 14, 1998

When a California lawyer's joint representation of co-clients ends and the co-clients dispute who gets the original client files, how should the lawyer handle the files?

Short answer: The opinion concluded that under former Rule 3-700(D)(1), a lawyer must promptly transfer files at the request of the former client. In a joint-representation dispute, the lawyer cannot favor one client over another; the lawyer should separate and transfer copies of materials that are themselves copies, and may consider interpleader, declaratory relief, or other available steps for truly original materials, while protecting confidences under section 6068(e).

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This page answers the general question as of 1998. Ezel answers yours: whether it's allowed on your facts, under the current California Rules of Professional Conduct, with citations.

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 Not binding precedent.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 on this page as a PDF) is the authoritative source for any reliance.

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Currency note

This opinion was issued in 1998, before California's November 1, 2018 adoption of the renumbered Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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.

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Plain-English summary

The committee considered an attorney who had represented two co-trustees of a revocable living trust in a joint representation that ended when a dispute arose between the co-trustees. Both former co-trustees retained separate counsel and both demanded the originals of the complete trust files. The committee analyzed two questions: how the attorney should handle the originals when former joint-representation clients dispute possession, and who should bear the copying cost if the former clients agree that one will receive originals and the other copies.

On the first question, the committee identified former Rule 3-700(D)(1) as requiring a member whose employment has been terminated to "promptly release to the client, at the request of the client, all of the client papers and property." The rule defines "client papers and property" to include correspondence, pleadings, deposition transcripts, exhibits, physical evidence, expert reports, and other items reasonably necessary to the representation, whether paid for or not. Citing LACBA Opinions 330 and 362 and Weiss v. Marcus, the committee identified the purpose as ensuring the client's interests are not prejudiced.

The committee concluded that conflicting instructions between joint former clients do not nullify the prompt-release obligation. As an initial step, the attorney should separate materials in the files that are themselves copies and promptly transfer copies of those copies to each former client. For truly original materials, the committee identified options including an interpleader action under Code of Civil Procedure section 386 or a declaratory relief action under Code of Civil Procedure section 1060 (citing Franklin v. Municipal Court). The committee identified the choice of legal mechanism as a legal question outside its scope, but observed that whatever steps the attorney takes must be consistent with the file-transfer obligation and protection of confidences under section 6068(e).

On the cost-of-copying question, the committee declined to opine (consistent with LACBA Opinion 362) on the ground that allocating copying costs is a legal question whose answer may depend on the particular facts and documents.

The committee observed that the duty to release files cannot be made dependent on payment of fees; the ethical duty does not fluctuate based on whether the attorney is paid in full, in part, or not at all (citing LACBA Formal Opinion 362, Weiss v. Marcus, and Academy of California Optometrists v. Superior Court). The committee also identified that, without the informed consent of both former clients, the attorney cannot ethically impose the copying cost on one and not the other.

The committee concluded by noting that future disputes of this kind can often be avoided by including engagement-letter provisions addressing disposition of original files upon termination and reimbursement of copying costs.

Common questions

Q: When co-clients in a joint representation both demand the original files, what does the California lawyer do?

A: Per the opinion, the lawyer cannot ethically favor one client over another. The committee identified an initial step of separating materials that are themselves copies and transferring those copies promptly to each former client. For truly original materials, the lawyer may consider interpleader, declaratory relief, or other appropriate action.

Q: Does the duty to release files turn on whether the lawyer has been paid?

A: Per the opinion, no. The committee identified the file-release duty as not dependent on the former client's payment of fees or costs; the duty does not fluctuate based on whether the attorney is fully paid, partially paid, or unpaid.

Q: Who pays for copying when the former clients agree one gets originals and one gets copies?

A: The committee declined to opine. The committee identified the cost-allocation question as a matter of law that may depend on the particular facts and documents.

Q: Can the lawyer impose copying costs on only one of the former co-clients?

A: Per the opinion, not without the informed consent of both former clients.

Q: Can engagement letters address this in advance?

A: Per the opinion, yes. The committee identified engagement-letter provisions for disposition of original client files upon termination and for reimbursement of copying costs as ethically permissible measures that should substantially reduce future disputes.

Background and rules framework

The opinion interprets former California Rule of Professional Conduct 3-700(D)(1) (return of client papers and property on termination), with reference to Business and Professions Code section 6068(e) (duty to maintain client confidences and secrets), Code of Civil Procedure sections 386 (interpleader) and 1060 (declaratory relief), and Probate Code sections 700 et seq. (where estate-planning documents may be implicated).

Citations and references

Rules of Professional Conduct (former):

California Rule 3-700(D)(1) (release of client papers on termination)

Statutes:

California Business and Professions Code section 6068(e)
California Code of Civil Procedure sections 386, 1060
California Probate Code sections 700 et seq.

Cases:

Academy of California Optometrists, Inc. v. Superior Court, 51 Cal.App.3d 999 (1975), order to deliver files
Franklin v. Municipal Court, 26 Cal.App.3d 884 (1972), interpleader where conflicting claims to exhibit
Weiss v. Marcus, 51 Cal.App.3d 590 (1975), file materials must be available to client on request

Other opinions cited:

LACBA Formal Opinion 330 (November 30, 1972)
LACBA Formal Opinion 362 (October 20, 1976)
LACBA Formal Opinion 475 (file retention)
San Francisco County Bar Association Formal Opinion 1984-1

Source

Landing page: https://lacba.org/?pg=ethics-opinions
Original PDF: https://lacba.org/docDownload/2010617

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