One of the common questions I see posted on law question and answer forums for California is some variant of ‘I’ve fired my lawyer and he won’t return my files so that I can go find another lawyer. What can I do?’
I’m surprised by this for two reasons. The first is morals and integrity, namely if a client fired me, I would not withhold their files. Every lawyer — me included — has had a client fire them before. It comes with the territory of being in the profession. Because there is an inevitability to being fired, I don’t see the point of refusing to return the client’s files. It doesn’t solve anything. The second reason I’m surprised, however, is probably more of interest to you if you’re reading this blog post of mine — it violates the rules California has for its lawyers.
The rules I’m talking about are the California Rules of Professional Conduct (RPC) and are put out by the State Bar of California. Failure to abide by the RPC subjects a lawyer to discipline by the State Bar. As you can probably gather, being disciplined by the licensing body for your profession is not a good thing. The RPC are fairly short so reading them is not difficult. If you do read them, you’ll find that they cover all types of conduct — from advertising to trust accounts to sexual relations — that lawyers can and can’t engage in.
The particular RPC that governs what lawyers have to do if they have been fired by a client is RPC 3-700, Termination of Employment. The return of the client’s files is covered in RPC 3-700(D)(1) which states:
“A member whose employment has terminated shall:
(1) 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” (<– emphasis mine)
As you can tell from the part I’ve bolded and underlined, the lawyer must return your files to you even if you the lawyer money for an unpaid invoice.
RPC 3-700(D) also covers the return of unused fee paid in advance:
“A member whose employment has terminated shall:
(2) Promptly refund any part of a fee paid in advance that has not been earned. This provision is not applicable to a true retainer fee which is paid solely for the purpose of ensuring the availability of the member for the matter.”
RPC 3-700(D) is pretty explicit and not subject to interpretation so, again, I’m surprised that the problem of getting files back from a lawyer remains as big a problem as it is.
The RPC, obviously, only applies in California. If you live outside the United States, I have no idea whether an equivalent of the RPC applies to lawyers in your country. If you live in the US but outside of California, you almost certainly have an analogue of the RPC. If getting files back from your former attorney is a problem, hopefully your RPC-analogue has a version of RPC 3-700(D).
Best of luck!
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Hi Andy. Great article. I have read the CA Bar Prof Conduct info and I am not finding answers to a few specific questions. I am plaintiff in a civil case (real estate non disclosure). I recently retained new counsel and file was transferred electronically. New firm “politely” implied that they are trying to “figure out” the file. The explained to new firm that I am an involved client and know what all the evidence is etc etc. But in trying to find things in file, I can’t. I recently emailed old lawyer asking where to find particular items in Dropbox file and he forwarded email to new attorney in a “she shouldn’t be contacting me she should be contacting you”. I was not asking advice, I was asking an admin type question. I don’t think it is fair that I have to pay new attorney to spend the time asking old attorney where things are in disorganized file of a year long case. Are there any rules around this type of thing? Basically, it will be more to get new attorney up to speed if he has to go do all the extra work when he should have been able to find files if they were properly organized. By the way, he stated he has no paperfile. His office Only has paperless/electronic file and scans everything.
How long is too long to not forward case files to client? Our attorney resigned in Sept/Oct ’17 and I still can’t get the files.
I just fired my family law attorney for not doing his job and I asked a few days in advance through via email to have my statement for the money he has spent in my case when I gave him $5000 dollars in advance but the day that I fired him,he did not have any statement ready,now I am having issues to get the money left back and also all my files. He said that he will give them to me accordimg to the law,I live in California and I would like to know what the law state in terms of returning those documents and money back? Thank you
How long does client have access to electronic case files after dismissing attorney
Depends on the individual attorney. It probably won’t be indefinite, but could range anywhere from a few days to a month. I usually do at least a week. Good luck and thanks for asking.
Thank you for the detailed post! It’s very clear you know what you are doing and communicate it effectively here. Keep up the good work! Darren Chaker