ETH 2007-174.

Court:California
 
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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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