ETH 2007-174.
Court | California |
California Ethics Opinion
2007.
ETH 2007-174.
THE STATE BAR OF
CALIFORNIASTANDING COMMITTEE ONPROFESSIONAL
RESPONSIBILITY AND CONDUCTFORMAL OPINION NO. 2007-1742007ISSUE:Is an attorney ethically
obligated, upon termination of employment, promptly to release to a client, at
the client's request, (1) an electronic version of e-mail correspondence, (2)
an electronic version of the pleadings, (3) an electronic version of discovery
requests and responses, (4) an electronic deposition and exhibit database,
and/or (5) an electronic version of transactional documents?DIGEST:
An attorney is ethically obligated, upon termination of
employment, promptly to release to a client, at the client's request: (1) an
electronic version of e-mail correspondence, because such items come within a
category subject to release; (2) an electronic version of the pleadings,
because such items too come within a category subject to release; (3) an
electronic version of discovery requests and responses, because such items are
subject to release as reasonably necessary to the client's representation; (4)
an electronic deposition and exhibit database, because such an item itself
contains items that come within categories subject to release; and (5) an
electronic version of transactional documents, because such items are subject
to release as reasonably necessary to the client's representation. The
attorney's ethical obligation to release any electronic items, however, does
not require the attorney to create such items if they do not exist or to change
the application (e.g., from Word (.doc) to WordPerfect (.wpd)) if they do
exist. Prior to release, the attorney is ethically obligated to take reasonable
steps to strip from each of these electronic items any metadata reflecting
confidential information belonging to any other client.
AUTHORITIES
INTERPRETED:
Rule 3-700(D) of the Rules of Professional Conduct of the State
Bar of California.
Business and Professions Code section 6068, subdivision
(e)(1).
STATEMENT OF FACTS
Attorney A was originally retained by Client to represent Client
in negotiating and executing an agreement with BiotechCorp, under which Client
entrusted a secret invention to BiotechCorp for development, patenting, and
commercialization in exchange for payment of royalties. In the course of the
representation, Attorney A prepared transactional documents, including the
agreement itself, using a commonly available word-processing computer program
to create manipulable files, and preserving such files in a readily searchable
electronic document management system, in both final form and antecedent
drafts. During the representation, Attorney A sent and received various e-mail
correspondence.
Subsequently, Attorney A was retained by Client in a separate
matter to file and prosecute an action on Client's behalf against Landlord
relating to Landlord's breach of a lease to commercial premises occupied by
Client. In the course of the representation, Attorney A prepared pleadings and
discovery requests and responses, using the same commonly available
word-processing computer program to create manipulable files, and preserving
such files in the same readily-searchable electronic document management
system, in both final form and antecedent drafts. Attorney A also created an
electronic database, which is electronically searchable by word queries and
other queries, containing deposition transcripts and exhibits. During this
representation too, Attorney A sent and received various e-mail
correspondence.
Client has now chosen to terminate Attorney A's employment and to
employ Attorney B in Attorney A's place. Client has requested Attorney A to
release to Client all of Client's papers and property. In particular, Client
has requested an electronic version of the pleadings in the action against
Landlord, expressing an intent to make them available to Attorney B for reuse,
by electronic "cutting" and "pasting," in drafting new documents in the
litigation as it progresses, and an electronic version of the discovery
requests...
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