After a California client discharges counsel in a pending litigation matter but no substitution of counsel has been filed, what are the lawyer's ongoing duties to the client, and may the lawyer hold the client's file until the substitution is filed?

Currency note

This opinion was issued in 1994, before the State Bar of California's adoption of the November 1, 2018 revisions to the Rules of Professional Conduct. The opinion interprets former California Rules 3-110, 3-300, 3-500, and 3-700, together with Code of Civil Procedure section 284 and Business and Professions Code section 6068(m). The substance is now distributed across current California Rules 1.1, 1.3, 1.4, 1.4.1, 1.8.1, and 1.16, but the opinion's analysis is rooted in the former framework. 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 Treat this page as historical context, not current guidance.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.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the State Bar of California's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.

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Plain-English summary

The committee took up two questions presented by a common litigation scenario: a client has "discharged" the lawyer but no substitution of counsel form has been filed. First, what duties does the lawyer continue to owe the client between discharge and substitution? Second, may the lawyer withhold the file from the client or successor counsel until the substitution form is filed?

On the first question, the committee opined that, under former Rule 3-700(A)(1) and Code of Civil Procedure section 284, an attorney remains the attorney of record until the substitution form is filed or the court otherwise permits withdrawal, even if the client has acted to discharge the lawyer. The committee cited In re Jackson, 170 Cal.App.3d 773 (1985), for the point that at least in criminal cases, a section 284 substitution is not valid unless the new attorney actually intends to act as the defendant's counsel, leaving the prior attorney with continuing obligations. While the attorney remains attorney of record, former Rule 3-110 requires competent representation, defined to include the diligence, learning, and skill, and the mental, emotional, and physical ability reasonably necessary for the service.

On the client's right to discharge, the committee opined that under California law the client may discharge counsel at any time with or without cause, citing Fracasse v. Brent, 6 Cal.3d 784 (1972). Even after discharge, the committee opined that the attorney can bind the client while still attorney of record (citing Reynolds v. Reynolds, 21 Cal.2d 580 (1943), and Sherman v. Panno, 129 Cal.App.2d 375 (1954)), and the new attorney's acts will be ineffective unless he or she is substituted in (citing McMunn v. Lehrke, 29 Cal.App. 298 (1915), Davis v. Rudolph, 80 Cal.App.2d 397 (1947), and In re Marriage of Warner, 38 Cal.App.3d 714 (1974)).

On the second question, the committee opined that former Rule 3-700(D) requires that, subject to any protective order or non-disclosure agreement, the attorney must promptly release to the client, at the client's request, "all the client papers and property," and defined client papers and property to include the traditional client file: 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. The committee opined that, in a pending litigation context, the lawyer's continuing obligations and the right of the client to access the file create tension. The committee construed former Rule 3-700(D) in light of former Rule 3-700(A)(1) and concluded the lawyer may retain possession and control of the file only to the extent necessary to represent the client competently and fulfill outstanding obligations to the tribunal. The committee opined that the lawyer may not hold the file to obtain payment or other consideration, citing former Rule 3-500 and Business and Professions Code section 6068(m) for the client's right to constant access to the file. The committee also opined that the client is entitled to demand that the file be made available for inspection by prospective new counsel at all reasonable times, and that where it is not necessary for the attorney to retain the file (such as where the case is dormant or successor counsel has begun to take substantial responsibility), the lawyer may not withhold the file pending formal withdrawal.

The committee opined that an attorney who wants to keep a copy of the file normally must bear the copying expense, citing San Diego Cty. Bar Formal Op. 1984-3, Bar Assoc. S.F. Formal Op. 1984-1, and San Diego Cty. Bar Formal Op. 1977-3. Where copying is done to enable the attorney to fulfill duties as attorney of record until substitution, the lawyer ethically may seek reimbursement for those copying costs, but cannot withhold the file until copying costs are paid; copying must be prompt and must not prejudice the client's immediate needs. The committee also noted that the definition of the "file" is beyond the scope of the opinion but referenced earlier opinions delineating common file components (pleadings, correspondence, investigative and research reports, discovery, and similar items) and confirmed that the file does not include documents or information the attorney is statutorily or court-orderly prohibited from sharing (such as a victim or witness's address or telephone number under Penal Code section 1054.2, or documents under protective order).

Common questions

Q: When a client discharges a lawyer in pending litigation, when do the lawyer's competence duties end?

A: Per the opinion, the lawyer remains the attorney of record (with former Rule 3-110 competence duties intact) until the substitution form is filed or the court permits withdrawal under Code of Civil Procedure section 284 and former Rule 3-700(A)(1).

Q: Can the lawyer hold the client file as security for unpaid fees?

A: Per the opinion, no. The committee opined the lawyer may not hold the file hostage in exchange for payment or other consideration. Former Rule 3-700(D) requires prompt release of client papers and property upon termination, and the only basis for retaining the file is the lawyer's continuing duty to represent the client competently and fulfill obligations to the court.

Q: What is included in "client papers and property"?

A: Per the opinion, former Rule 3-700(D)(2) defines the term to include 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. The committee declined to fix a fuller definition.

Q: Can the lawyer wait to release the file until a formal substitution is filed?

A: Per the opinion, not necessarily. Even before a formal substitution, the lawyer must release portions of the file when retaining them is not needed for competent representation or to meet obligations to the tribunal. The lawyer also must make the file available to the client or prospective new counsel for inspection at reasonable times.

Q: Must the lawyer pay the cost of copying the file for her own records?

A: Per the opinion, the lawyer ordinarily bears the copying expense if she wants a copy for her own records. Where copying is done to enable the lawyer to fulfill ongoing duties as attorney of record until substitution, the lawyer may seek reimbursement from the client but cannot withhold the file until paid, and must copy promptly without prejudicing the client.

Q: What if a person claiming to be the client's new lawyer asks for the file?

A: Per the opinion, the lawyer should confirm directly with the client that the client has hired the second attorney and wants the file released. Failure to do so could result in prejudice such as waiver of attorney-client privilege or work product protection (citing Evidence Code sections 950-955 and former Code of Civil Procedure section 2018).

Background and rules framework

The opinion interprets former California Rules 3-110 (competence), 3-300 (business transactions with clients), 3-500 (client communication), and 3-700 (withdrawal, particularly 3-700(A)(1) and 3-700(D)), together with Code of Civil Procedure section 284 and Business and Professions Code section 6068(m). The substance is now distributed across current California Rules 1.1, 1.3, 1.4, 1.4.1, 1.8.1, and 1.16, but the opinion is rooted in the former framework.

Citations and references

Rules of Professional Conduct (former, in effect at time of opinion):

• Former California Rule 3-110, including (A) and (B)
• Former California Rule 3-500
• Former California Rule 3-700, including (A)(1), (A)(2), (B)(2), (C)(1)(f), (D), (D)(1), and (D)(2)
• Reference to former Rule 3-520 (proposed at time of opinion)

Statutes:

• California Business and Professions Code section 6068(m) and (n)
• California Code of Civil Procedure section 284
• California Code of Civil Procedure section 2018(f)
• California Evidence Code sections 950-955
• California Penal Code section 1054.2

Cases:

• Fracasse v. Brent, 6 Cal.3d 784 (1972), client's absolute right to discharge counsel
• In re Jackson, 170 Cal.App.3d 773 (1985), validity of section 284 substitution in criminal cases
• Reynolds v. Reynolds, 21 Cal.2d 580 (1943), service on former attorney effective until substitution
• Sherman v. Panno, 129 Cal.App.2d 375 (1954), notice on former attorney effective
• McMunn v. Lehrke, 29 Cal.App. 298 (1915), unsubstituted new attorney's acts ineffective
• Davis v. Rudolph, 80 Cal.App.2d 397 (1947), same
• In re Marriage of Warner, 38 Cal.App.3d 714 (1974), same
• Friedman v. State Bar, 50 Cal.3d 235 (1990), file release even if client has a copy

Other opinions cited:

• Bar Assoc. of S.F. Formal Op. 1990-1, file contents and disclosure on withdrawal
• Bar Assoc. of S.F. Formal Op. 1984-1, file contents and copying
• San Diego Cty. Bar Formal Op. 1977-3, components of the file
• San Diego Cty. Bar Formal Op. 1984-3, copying costs
• L.A. Cty. Bar Formal Op. 330, file release
• L.A. Cty. Bar Formal Op. 362, file release and work product
• L.A. Cty. Bar Formal Op. 405, work product and the file

See also

• CA Ethics Op. 2007-174: Electronic Versions of Client File on Termination
• CA Ethics Op. 2008-175: Successor Counsel Lien and Client Concealment Instruction
• CA Ethics Op. 2001-157: Retention and Destruction of Former Client Files
• CA Ethics Op. 2006-171: Fee Dispute after Trust Account Withdrawal

Source

• Landing page: https://www.calbar.ca.gov/legal-professionals/ethics-compliance-practice-resources/ethics/ethics-opinions
• Source HTML: https://www.calbar.org/ethics/Opinions/1994-134.htm

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Ethics Opinions - FORMAL OPINION NO. 1994-134

Editor's Note:

State Bar Ethics Opinions cite the applicable California Rules of Professional Conduct in effect at the time of the writing of the opinion. Please refer to the California Rules of Professional Conduct Cross Reference Chart for a table indicating the corresponding current operative rule. There, you can also link to the text of the current rule.

THE
STATE BAR OF CALIFORNIA

STANDING COMMITTEE ON

PROFESSIONAL RESPONSIBILITY AND CONDUCT
FORMAL OPINION NO. 1994-134

ISSUES:

1. What are an attorney's ethical obligations to prevent prejudice to the client after the attorney's employment in a litigation matter has been terminated, but before a substitution of counsel form has been filed?

2. Is it ethically permissible for an attorney whose employment has been terminated to withhold the file from the client or successor attorney until the client and the successor attorney have signed and filed or permitted the filing of a valid substitution of attorneys or the attorney has otherwise been permitted to withdraw by the tribunal before whom the matter is pending?

DIGEST:

1. An attorney remains the attorney of record until the substitution of counsel form is filed or the tribunal before whom the matter is pending has otherwise permitted counsel to withdraw, and therefore, has the same duties to act competently to protect the client from prejudice as the attorney did before discharge.

2. When a matter is pending before a tribunal, the attorney may retain possession and control of the file only to the extent necessary to represent the client competently and fulfill any outstanding obligations to the court arising out of that representation. The attorney may not, however, hold the file in order to obtain payment or other consideration from the client in exchange for the delivery of the file to the client. With very limited exceptions, the attorney must make the file available to the client or successor counsel and provide a copy thereof upon demand.

AUTHORITIES INTERPRETED:

Rules 3-110, 3-300, 3-500, 3-700(A), and 3-700(D) of the California Rules of Professional Conduct.

Business and Professions Code section 6068, subdivision (m).

DISCUSSION

An attorney currently represents a client in a litigation matter. The client states that he or she wants to keep the file. Alternatively, the client has informed the attorney of the client's intention to terminate the attorney's employment and replace the attorney with successor counsel. Neither the client nor the successor attorney has signed or filed a substitution of attorneys form. However, the client and/or the successor attorney request that the attorney deliver the file to one or both of them immediately.

A. An Attorney Has a Duty to Act Competently to Protect His or Her Client's Interests Until a Substitution of Counsel is Filed or the Court Otherwise Orders.

Rule of Professional Conduct 3-700(A)(1) prohibits a member from withdrawing from employment in a proceeding before a tribunal without its permission. Accordingly, even though a client has otherwise acted to "discharge" an attorney, California law provides that the attorney remains the attorney of record until a substitution of counsel form is filed with the court, or the Court has otherwise granted permission. (See Code Civ. Proc., § 284.) Furthermore, at least in criminal cases, a substitution of counsel filed pursuant to Code of Civil Procedure section 284 is not valid unless the new attorney actually intends to act as the defendant's attorney. (See In re Jackson (1985) 170 Cal.App.3d 773 [216 Cal.Rptr. 539] [because no valid substitution of counsel form filed under Code Civ. Proc., § 284(1), trial court had jurisdiction over attorney to order attorney to continue to represent defendant].)

Therefore, for as long as the attorney is the attorney of record for the client in the matter, the attorney is compelled by rule 3-110 to represent the client competently. Rule 3-110 provides in part:

(A) A member shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence.

(B) For purposes of this rule, "competence" in any legal service shall mean to apply the 1) diligence, 2) learning and skill, and 3) mental, emotional, and physical ability reasonably necessary for the performance of such service.

The duties imposed by rule 3-110 continue until the attorney no longer represents the client.

B. A Client Has the Right at Any Time to Discharge an Attorney.

Under California law the client has the right to "discharge" his or her attorney at any time with or without cause. As the California Supreme Court explained in Fracasse v. Brent (1972) 6 Cal.3d 784, 790 [100 Cal.Rptr. 385]:

It has long been recognized in this state the client's power to discharge an attorney, with or without cause, is absolute[.] (Code Civ. Proc., § 284[.]). In discussing the unique relationship between attorney and client, this court stated that "The interest of the client in the successful prosecution or defense of the action is superior to that of the attorney, and he has the right to employ such attorney as will in his opinion best subserve his interest. The relation between them is such that the client is justified in seeking to dissolve that relation whenever he ceases to have absolute confidence in either the integrity or the judgment or the capacity of the attorney. . . . The fact that the attorney has rendered valuable services under his employment, or that the client is indebted to him therefor, or for moneys advanced in the prosecution or defense of the action, does not deprive the client of this right. . . ." (Citations omitted.)

We have concluded that a client should have both the power and the right at any time to discharge his attorney with or without cause.

C. The Attorney Still Has Obligations to the Client as Long as He or She Remains the Attorney of Record.

Even though an attorney has been "discharged," as already noted, California law is equally clear that the attorney remains the attorney of record until a substitution of counsel form is filed with the court, or the court has otherwise granted its permission for the attorney to withdraw from the representation. The attorney can still bind his or her client if the other side does not know about the change in counsel. (See Reynolds v. Reynolds (1943) 21 Cal.2d 580, 584 [service of papers on former attorney, after final judgment of divorce, in proceeding to increase support award, held proper]; Sherman v. Panno (1954) 129 Cal.App.2d 375, 379 [notice of entry of judgment for plaintiff, mailed to defendants' former counsel before notice of substitution received by counsel for plaintiff, held effective to start statutory time running on court's power to grant new trial].)

The new attorney will not be recognized by the courts, and his or her acts will be ineffective, unless he or she is substituted as attorney of record or unless the opposing party, by dealing with him or her as an attorney, waives the failure to substitute. (See McMunn v. Lehrke (1915) 29 Cal.App. 298, 307; Davis v. Rudolph (1947) 80 Cal.App.2d 397, 402; In re Marriage of Warner (1974) 38 Cal.App.3d 714, 720 [113 Cal.Rptr. 556].)

D. The Attorney is Required to Turn Over the File After Discharge and May Only Retain Possession of The File or Such Portions of the File as Are Necessary to Represent the Client's Interests Competently.

Upon the termination of an attorney's employment, rule 3-700(D) requires that, "[s]ubject to any protective order or non-disclosure agreement," the attorney must "promptly release to the client, at the request of the client, all the client papers and property." That rule further makes it clear that the client's "papers and property" include what has been thought of as the "client file," traditionally created and maintained by the attorney during the course of the representation. Specifically, rule 3-700(D) then defines "client papers and property" as including: "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; . . . . "

As the discussion thus far demonstrates, the attorney who has been "discharged" by the client, but who has not yet been "substituted out" of the case faces conflicting obligations. On the one hand, he or she is required to turn over the clients' "papers and property" upon termination, and, on the other hand, the attorney owes responsibilities to the "client," and, indeed, the Court, until a proper substitution is filed or the attorney is otherwise permitted to withdraw from the representation.

Under these circumstances, the question is not who owns the file, but who may possess and control the file until the attorney is relieved of his or her obligations to the client before the tribunal. In evaluating the requirements of rule 3-700(D), this Committee believes that the term "terminated" in that rule must be construed in light of rule 3-700(A)(1). The latter rule requires permission from a tribunal where its rules, such as Code of Civil Procedure section 284, require it. Of course, upon filing a substitution of attorneys showing the client's consent, such permission is deemed given pursuant to that statute. The Committee does not believe, however, that this necessarily answers the question posed at the outset of this paragraph.

Thus, although this Committee is of the opinion that the requirements of rule 3-700(D) are contingent upon the formalities of substitution and withdrawal set forth in Code of Civil Procedure section 284, the client's ownership of his or her papers nevertheless raises the question as to whether there is any earlier point at which the attorney must provide the client's papers and property or some portion thereof, to the client. Rule 3-700(D)(1) simply provides that an attorney whose employment has been terminated shall promptly turn over to the client at the client's request, "all the client papers and property," and does not address this question.

Implied in the representation of the client is the attorney's need to create and maintain those "client papers and property." In order to represent the client competently and to prevent harm to the client, the attorney must, generally, have the file available. Moreover, as Rule 3-700(D)(1) recognizes, the attorney must also retain custody of those documents to which the client is not entitled to have access because of an applicable court order or some other legal reason.

Nevertheless, with those limited exceptions, the client is entitled to constant access to the file at all times during the representation. (See rule 3-500 and Bus. & Prof. Code; § 6068 (m) [attorney must "keep a client reasonably informed" and "promptly comply with reasonable requests for information"].) This obligation, together with the duty expressed in rule 3-700(A)(2) to take "reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client," unquestionably includes the client's right to demand that the file also be made available for inspection by prospective new counsel at all reasonable times.

Although, in many cases, an attorney may find it difficult, if not impossible, to meet his or her continuing obligations as an attorney of record without the file, in those cases where it is not necessary for the attorney to do so, such as where the case is dormant or successor counsel has begun to take substantial responsibility for the representation, the attorney may not withhold the file from the client or successor counsel merely to await the technicality of formal withdrawal from the action. Put another way, the reason for permitting the attorney to control and possess the client's papers and property is the attorney's duty to protect the client's interests and fulfill the attorney's obligations to the court. When those reasons do not justify the attorney maintaining possession of the file, the attorney may not do so. This includes portions of the file that may be unnecessary even if other portions remain necessary for the attorney's competent representation of the client.

In sum, the attorney may retain possession and control of the file if, and only if, it is necessary to do so in order to represent the client competently and fulfill any outstanding obligations to the court arising out of that representation. The attorney may not, however, hold the file hostage in order to obtain payment or other consideration from the client in exchange for the delivery of the file to the client. It is improper for an attorney to hide behind the obligation to act competently in order to use the file as leverage against a client.

Accordingly, this Committee believes that although an attorney may, in many cases, retain the file until formally relieved of his or her obligations as attorney of record, the question can only be answered in each case by focusing on the attorney's duty to act competently on the client's behalf and to fulfill any outstanding obligations to the court.

CONCLUSION

The client is entitled to discharge the attorney at any time, and the attorney is ethically obligated to turn over the file, or any part of it, upon the client's request once the attorney's employment has terminated, or at any earlier point where the attorney can do so without impairing his or her obligations to act competently on behalf of the client and to fulfill any outstanding obligations to the court.

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 responsibilities, or any member of the State Bar.