Attorney work product protection for client file materials

Most attorneys are aware of the obligation to return a client's "file" upon request following the termination of a representation. However, while this may seem like a relatively straightforward task, attorneys often find that there are a number of gray areas in determining what exactly is included in the file, even in jurisdictions that have rules addressing the issue. This is especially true with the rise of electronic communications and documents, which has expanded the scope of items that might be considered part of the file.

In some situations, a client or a client's new counsel might be content to obtain only the usual pleadings, briefs, discovery and formal correspondence. However, in other situations (such as where the client is involved in related litigation), the attorney might receive a document request or subpoena for a broader range of documents, including attorney-created internal documents that were never shared with the client previously.

Notably, this issue can arise when a law firm receives a subpoena from a third-party broadly seeking any document relating to a matter involving the firm's client. The determination of what documents to withhold, as well as potential litigation over the issue (including a possible motion to quash), can require significant time and expense to resolve.

In particular, for such requests either by clients or third-parties, the law firm often considers the scope of the work product doctrine, which has been applied in different manners by federal and state courts since it was established by the Supreme Court in the seminal case of Hickman v. Taylor. Below are some tips for analyzing the obligation to produce documents in light of both the applicable ethical rules and the work product doctrine.

The Obligation to Produce the Client File

Although California recently brought its ethical rules more in line with the ABA Model Rules of Professional Conduct, California largely retained its prior rule governing the return of the client file which provides comparatively greater guidance than the corresponding model rule. Rule 1.16 of the California Rules of Professional Conduct provides that, upon termination of a representation, "subject to any applicable protective order, non-disclosure agreement, statute or regulation, the lawyer promptly shall release to the client, at the request of the client, all client materials and property." "Client materials and property" is defined to include "correspondence, pleadings, deposition transcripts, experts' reports and other writings, exhibits, and physical evidence, whether in tangible, electronic or other form, and other items reasonably necessary to the client's representation, whether the client has paid for them or not."

However, while Rule 1.16 may specify certain categories of documents included in the client file, there remains potential uncertainty regarding what might be deemed "reasonably necessary to the client's representation." In particular, the question of whether work product comes within the scope of Rule 1.16 might require a consideration of the exact nature of the work product doctrine under California law. Indeed, California provides either absolute or qualified work product protection depending on the nature of the documents.

With respect to the absolute privilege, California law provides that "[a] writing that reflects an attorney's impressions, conclusions, opinions or legal research or theories is not discoverable under any circumstances." CCP Section 2018.030(a). Under most circumstances, attorneys are not required to produce absolute work product. For all other types of documents (referred to as qualified work product),the work product protection will apply "unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party's claim or defense or will result in an injustice." CCP Section 2018.030(b).

However, where the request for documents is made by a client, an additional layer of analysis is necessary in light of the client's potential right to all documents created by an attorney. Indeed, jurisdictions take different approaches in determining whether the work product privilege is a relevant consideration when a client seeks the production of documents from her or his attorney. In some jurisdictions, purely internal memoranda, non-substantive communications, or drafts are considered the property of the attorney or law firm and need not be produced to a client who is seeking the "client file." Other jurisdictions, including California, view the client file as essentially the property of the client, and thus the work product doctrine has no applicability. Specifically, Code of Civil Procedure Section 2018.080 provides that "In an action between an attorney and a client or a former client of the attorney, no work product privilege under this chapter exists if the work product is relevant to an issue of breach by the attorney of a duty to the client arising out of the attorney-client relationship."

Identify the Author of the Document

The analysis of whether certain materials qualify as work product usually entails more than just a review of the content of the materials (and whether they are general or opinion work product). It also involves a review of who created them.

Depending on the nature and scope of the representation, many different people could have a role in creating work product material. The most obvious are the client and the lawyer who represents her. However, other individuals affiliated with the client and lawyer, and those who are retained in connection with a representation, may generate both general or opinion work product that is typically subject to some level of protection.

When it comes to experts, the inquiry can be more complicated. Under the Federal Rules, for example, the answer often lies in whether the expert will testify at trial or whether the expert is retained as a consultant. If the former, the work-product doctrine may not protect the facts known or opinions held by those experts. After all, the purpose of retaining a testifying expert is to use his or her opinions, and therefore the facts used to form those opinions, at trial.

Avoid an Inadvertent Waiver

The key when considering these issues is to devote the necessary time and consideration in determining whether documents might be subject to the work product privilege. Although the ability to claw back already produced documents can vary, it may be difficult to return to the status quo once documents are produced that may have been protected from disclosure.

As requests for documents from a client file are becoming a regular occurrence, attorneys can limit their risks when receiving such requests by educating themselves on the relevant legal issues.