When a former client asks for the return of mental-health records the lawyer obtained during the representation, can the lawyer refuse on the basis that disclosure would be detrimental to the client or others?

Plain-English summary

The committee considers a public defender who obtained mental-health records of a client during representation. The records came with a written warning from the originating provider that they should not be released directly to the client because disclosure could be detrimental to the client's mental health or place others in danger. The former client now instructs the lawyer to release the records.

The committee reads former Rule 3-700(D)(1) literally: on termination of the representation, the lawyer "shall promptly release to the client, at the request of the client, all the client papers and property," subject only to any applicable protective order or non-disclosure agreement. The committee characterizes the rule as recognizing that client files belong to the client and the lawyer's duty is to carry out the client's lawful instructions, with no discretionary override.

The committee separately addresses the warning the provider attached to the records. California Health & Safety Code sections 123100 through 123149.5 give the patient a general right to access mental-health records, with an exception in section 123115(b) allowing the provider to refuse direct disclosure to the patient on a finding of substantial risk and to disclose only through a designated licensed professional. The committee notes that this provider-side authority does not extend to the patient's attorney once the records are in the attorney's possession; no statute authorizes the attorney to limit disclosure based on the attorney's own view of risk. If the provider had refused to release the records, the patient could have sought judicial relief under section 123120; if a court had issued an order limiting disclosure, the attorney would be bound by it under Rule 3-700(D)'s "subject to any protective order" carve-out. On the facts, no such order existed.

The committee addresses competence concerns under Shephard v. Superior Court (1986) (lawyer may waive jury trial in incompetency proceeding over client's objection), People v. Stanley (1995), and People v. Masterson (1994). The committee reads those decisions as limited to the incompetency-trial context and rejects extending them to a general right of the lawyer to make substantive decisions for a client or to withhold a former client's files based on the lawyer's view of mental condition.

On the question of seeking court intervention, the committee follows State Bar Formal Opinion 1989-112 (lawyer cannot institute conservatorship against a current client). The committee extends the analysis to a former-client posture: a lawyer cannot terminate the relationship and then seek to interfere with the former client's lawful instructions. Doing so would violate the duties of confidentiality and undivided loyalty (Watchumna Water Co. v. Bailey (Cal. 1932); Yorn v. Superior Court (1979); Stockton Theatres v. Palermo (1953)).

The committee concludes by directing the lawyer to comply with the former client's request, without distinction between records marked with the provider's warning and records not so marked, and without seeking court intervention adverse to the former client.

In practice

The opinion holds that, under former California Rule 3-700(D)(1) as it stood in 2002, the lawyer's duty to release client files to a former client on request is non-discretionary, subject only to applicable protective orders. The committee directs the lawyer not to act against the former client through court intervention or by withholding the records based on the lawyer's own risk assessment.

California's professional-conduct rules were revised effective November 1, 2018; former Rule 3-700(D) corresponds substantially to current Rule 1.16(e) (return of client materials on termination), and the duty of confidentiality is in current Rule 1.6 and Bus. & Prof. Code section 6068(e). The committee's analysis predates the 2018 revisions.

Common questions

Q: Must a California lawyer release a former client's mental-health records to the former client on request?

A: Per the opinion, yes. Former Rule 3-700(D)(1) is non-discretionary, subject only to applicable protective orders or non-disclosure agreements. The lawyer's own view of the client's best interests does not allow withholding.

Q: What about a warning from the health-care provider that the records should not be released to the patient?

A: Per the opinion, the warning has no legal effect on the attorney. California Health & Safety Code section 123115(b) authorizes the health-care provider to refuse disclosure on a finding of substantial risk, but does not extend the same authority to a patient's attorney holding records the provider already produced.

Q: Can the lawyer seek a court order to limit disclosure to the former client?

A: Per the opinion, no. The committee, extending State Bar Formal Opinion 1989-112's reasoning, holds that the lawyer cannot terminate the relationship and then act against the former client; the duties of confidentiality and undivided loyalty bar that course.

Q: What if the former client is or may be incompetent?

A: Per the opinion, the committee reads cases like Shephard v. Superior Court and People v. Masterson as limited to incompetency proceedings and rejects extending them to a general right to withhold files based on the lawyer's view of mental condition.

Q: Does the rule still apply if the lawyer wasn't fully paid?

A: Per the opinion's quotation of Rule 3-700(D), client papers and property must be released "whether the client has paid for them or not."

Background and rules framework

The opinion interprets former California Rule of Professional Conduct 3-700 (termination of employment, including 3-700(D)(1)) and Bus. & Prof. Code section 6068. It engages California Health & Safety Code sections 123100 through 123149.5 (patient access to records), particularly sections 123111, 123115(b), and 123120, and Civil Code section 56 and sections 1798-1798.78 (Information Practices Act). The committee aligns its reasoning with State Bar Formal Opinion 1989-112 (no conservatorship action against client) and LACBA Formal Opinions 459, 475, and 491.

Citations and references

Rules of Professional Conduct:

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

Statutes:

• Civil Code section 56
• Civil Code sections 1798-1798.78 (Information Practices Act)
• Civil Code section 1798.40(f), 1798.41, 1798.45-53
• Health & Safety Code sections 123100 through 123149.5 (patient access to records)

Cases:

• Santa Clara County Counsel Attys. Assoc. v. Woodside, 7 Cal.4th 525 (Cal. 1994)
• Blanton v. Womancare, 38 Cal.3d 396 (Cal. 1985)
• Lee v. State Bar, 2 Cal.3d 927 (Cal. 1970)
• People ex rel. Deukmejian v. Brown, 29 Cal.3d 150 (Cal. 1981)
• People v. Stanley, 10 Cal.4th 764 (Cal. 1995), approving Shephard
• People v. Masterson, 8 Cal.4th 965 (Cal. 1994), incompetency-trial procedure
• Rose v. State Bar, 49 Cal.3d 646 (Cal. 1989)
• Shephard v. Superior Court, 180 Cal.App.3d 23 (1986), counsel may waive jury in incompetency trial
• Sullivan v. Duane, 198 Cal. 183 (Cal. 1926)
• Tarasoff v. Regents of University of California, 17 Cal.3d 425 (Cal. 1976)
• Watchumna Water Co. v. Bailey, 216 Cal. 564 (Cal. 1932), former-client adverse use
• Stockton Theatres v. Palermo, 121 Cal.App.2d 616 (1953)
• State Comp. Ins. Fund v. WPS, Inc., 70 Cal.App.4th 644 (1999)
• Yorn v. Superior Court, 90 Cal.App.3d 113 (1979)

Other opinions cited:

• Cal. State Bar Formal Opinion 2001-156
• Cal. State Bar Formal Opinion 1994-134
• Cal. State Bar Formal Opinion 1989-112: no conservatorship action against client
• Cal. State Bar Formal Opinion 1989-111
• Cal. State Bar Formal Opinion 1987-93
• LACBA Formal Opinions 459, 475, 491

See also

• LACBA Opinion 491: Attorney Office Files Destruction When Client Deceased
• LACBA Opinion 498: Withdrawal to Avoid Making a Disclosure
• LACBA Opinion 506: Duty to Preserve Former Client's Confidences

Source

• Landing page: https://lacba.org/?pg=ethics-opinions
• Original PDF: https://lacba.org/docDownload/2010596