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Ethics Opinions from the Bar Association of San Francisco

INFORMAL OPINION 1973-12

An attorney who has withdrawn from a case which he was handling on a contingency fee basis is not obligated to deliver the contents of his office file to the client or successor counsel, but should permit reasonable inspection and copying. Such cooperation may not be conditioned on the reimbursement of filing fees advanced by the attorney who withdrew.

QUESTION:

A lawyer represented the client under a contingent fee agreement and advanced filing fees in two actions. The client now wishes to discontinue the proceedings. The lawyer has asked the following questions:

  1. Is he obligated to deliver to the former client his office files for the matter, which consist of letters and copies of letters to and from him and copies of pleadings?
  2. If he is obligated to deliver or permit examination of the files, may he require reimbursement for the costs advanced by him as a condition for doing so?

OPINION:

It appears that a lawyer is not legally obligated to deliver the contents of such an office file to a former client. The file is the lawyer's property, not the client's.

No specific canon of ethics covers the question. However, generally accepted professional practice is to allow a former client or succeeding counsel to inspect and make copies of such a file, and if reasonable assurance of return is given, borrowing of the file for examination and copying should be permitted. The view has been expressed that this general practice constitutes an ethical principle. See Ethics Opinions, Los Angeles Bar Association, Opinions Nos. 103, 197 and 253.

If the lawyer has a professional obligation to permit examination and copying of the file, it would be unethical to condition this permission on reimbursement of the advanced costs. The ultimate liability for costs advanced by a lawyer must be that of the client. American Bar Association Code of Professional Ethics , Canon 5. However, a lawyer may not acquire an interest adverse to a client. State Bar of California, Rules of Professional Conduct, Rule 4. Conditioning of the client's rights with respect to the file on reimbursement for the costs advanced would constitute the assertion by the lawyer of an interest in the file adverse to that of the client.

All opinions of the Committee are subject to the following disclaimer:
Opinions rendered by the Ethics Committee are an uncompensated service of The Bar Association of San Francisco. Opinions are advisory only, and no liability whatsoever is assumed by the Committee or The Bar Association of San Francisco in rendering such opinions, and the opinions are relied upon at the risk of the user thereof. Opinions of the Committee are not binding in any manner upon the State Bar of California, the Board of Governors, any disciplinary committee, The Bar Association of San Francisco, or the individual members of the Ethics Committee.

In using these opinions you should be aware that subsequent judicial opinions and revised rules of professional conduct may have dealt with the areas covered by these ethics opinions.

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