Want to know if it is permitted for an attorney to destroy notes he wrote during our meetings, interviews, depos and trial?
Employment / Labor Attorney
I assume this question is not purely theoretical, and what the Asker wants to know is whether an attorney is required to provide his or her notes to the client along with the correspondence, pleadings, discovery, and other components of the client's file. I would guess the Asker received his or her client file from a previous attorney; the attorney's notes were not in the file; the Asker requested those notes; and the previous attorney said the notes had been destroyed.
The heart of the issue is whether the attorney’s notes belong to the attorney or the client. Unfortunately, the California State Bar has not answered this question. Various local bar associations have issued non-binding ethics opinions on the subject. Things being what they are, those opinions are inconsistent. There is case law, too, that muddies the water even further.
The California State Bar Rules of Professional Conduct, Rule 3-700, Termination of Employment, states “A member shall not withdraw from employment until the member has taken reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client, including giving due notice to the client . . . .” Rule 3-700(A)(2).
The Rule also states an attorney whose services are terminated must give the client, at the client’s request, “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 . . . Rule 3-700(D)(1)
California State Bar Formal Opinion No. 1994-134 implies that client papers and property, as defined by Rule 3-700(D)(1), is not a “static” “concept,” and states that its “content will change depending upon circumstances.” The Opinion says an attorney’s ethical responsibilities to the client are not based on the physical contents of the client’s “case file” but instead are based on the ethical obligation . . . to act reasonably to avoid reasonably foreseeable prejudice to his or her former client.”
The San Francisco Bar Association has two Formal Opinions (No. 1990-1 and No. 1996-1) to the effect that “client papers and property” includes anything whose release is necessary to avoid reasonably foreseeable prejudice to the client’s interests.
Complicating this is California evidence law, which is quite clear that an attorney’s work product belongs to the attorney, not the client. Only the attorney can waive the attorney work product privilege.
Nevertheless, the Los Angeles County Bar Association said work product “for which the client may be billed belongs to the client.” From that perspective, “everything in a client’s file is the property of the client, because it either has been copied at client expense, or the time utilized to create it has been at client expense.” LACBA Formal Opinion Nos. 330 (1972), 362 (1976), and 405 (1982).
In contrast, the San Diego County Bar Association said an attorney’s personal notes, “impressions, conclusions, opinions or legal theories” are the property of the attorney, not the client, and are not part of the file to be returned to the client. Opinion No. 1984–3.
I could go on with more examples, but it won’t make things any clearer. California attorneys have no way to know whether they are obliged to provide notes they took to a client as part of the client’s file. We also don’t know the length of time we are required to hang on to a client’s file after the case is over; the Bar hasn’t given us any guidance on this. I thought I might avoid the problem as I move increasingly to electronic files; then I learned that disks and other digital storage media decline over time.
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There is no requirement that an attorney take any notes. Likewise, there is no requirement for an attorney to maintain the notes that he or she took, if any.
Frank W. Chen is licensed to practice law in the State of California. The information presented here is general in nature and is not intended, nor should be construed, as legal advice. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, consult your own attorney.
There are no requirements for attorneys to keep any notes that they make at any time with regard to your case. While an attorney does have to maintain your file for a specific number of years, that does not apply to his or her own notes, which can simply be reminders for the attorneys or sometimes end up not being useful at all.
Any handwritten notes I take are temporary and intended to be put into more formal documents or destroyed. I don't destroy them to keep them from a client but because I don't need them any more.
The above is general legal and business analysis. It is not "legal advise" but analysis, and different lawyers may analyse this matter differently, especially if there are additional facts not reflected in the question. I am not your attorney until retained by a written retainer agreement signed by both of us. I am only licensed in California. See also avvo.com terms and conditions item 9, incorporated as if it was reprinted here.