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CA Eth. Op. 1992-127
(Cite as: 1992 WL 166235 (Cal.St.Bar.Comm.Prof.Resp.))
California State Bar
Standing Committee on Professional Responsibility and Conduct
Copyright (C) 2001, State Bar of California
Reprinted with permission. All rights reserved.
*1 ISSUE: TO WHAT EXTENT MUST A CRIMINAL DEFENSE
ATTORNEY, HAVING BEEN
RELIEVED BY SUCCESSOR COUNSEL, COOPERATE WITH
NEW COUNSEL?
Formal Opinion Number 1992-127
1992
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
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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. [FN1]
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. [FN2] 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. [FN3] 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."
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*2 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." [FN4] 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.Cal1988) 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.) [FN5]
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.)
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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. [FN6]
Trial counsel should not undermine that right by refusing to cooperate
with appellate counsel.
*3 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
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counsel, the attorney may properly seek compensation for such effort.
[FN7]
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.
FN1 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.
FN2 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].)
FN3 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.)
FN4 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.
FN5 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.)
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FN6 Evitts v. Lucey (1985) 469 U.S. 387 [105 S.Ct. 830].
FN7 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.
END OF DOCUMENT