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Attorney-Duty to Turn Over Client File
(Rose v. State Bar)
 

Attorney-Duty to Turn Over Client File
(Rose v. State Bar)

In regard to the Mulligan matter, the hearing panel's legal conclusions were: (1) petitioner violated rule 2-111 (A)(2) fn. 7 by willfully failing to return a client's file upon termination of representation; (2) petitioner violated rule 6-101(A) fn. 8 by willfully failing and refusing to communicate with a client; and (3) petitioner's acts did not involve moral turpitude.

[2] Petitioner correctly argues that imposing discipline for willfully failing and refusing to communicate with Mulligan would be improper as this conduct was never charged. (Gendron v. State Bar (1983) 35 Cal.3d 409, 420 [197 Cal.Rptr. 590, 673 P.2d 260].) Willful failure to communicate with Mulligan was not among the charges stated in the amended notice to show cause, and when the examiner began to introduce evidence on this issue, the hearing panel instructed the examiner to move to another area as evidence of petitioner's failure to communicate with Mulligan was not relevant to any of the charges. Disciplinary charges against an attorney may be amended to conform to proof, provided the attorney is given a reasonable opportunity to defend against the charge (ibid.), but here the examiner acquiesced in the hearing panel's ruling and did not move to amend count three to add a charge of willful failure to communicate with the client. Accordingly, we do not adopt the hearing panel's findings or conclusions in regard to this charge. [49 Cal.3d 655]

[3] The conclusion that petitioner violated rule 2-111 (A)(2), by willfully failing to return a client's file upon termination of representation, is challenged by petitioner on the grounds that he had no duty to return the case file of a finally concluded action and that, in any event, he returned the file as soon as he was able to retrieve it following the unexpected death of the attorney to whom he had given it for evaluation.

Whether an attorney has a duty to surrender uncommunicated work product to a client for the client's use in a malpractice action against the attorney appears to be an open question. (See Lasky, Haas, Cohler & Munter v. Superior Court (1985) 172 Cal.App.3d 264, 271-279 [218 Cal.Rptr. 205].) But there can be no doubt that the balance of an attorney's litigation file is the property of the client and must be surrendered promptly upon request to the client or the client's new counsel once the representation has terminated. (Carter v. State Bar (1988) 44 Cal.3d 1091, 1098 [245 Cal.Rptr. 628, 751 P.2d 894]; Finch v. State Bar (1981) 28 Cal.3d 659, 665 [170 Cal.Rptr. 629, 621 P.2d 253]; Kallen v. Delug (1984) 157 Cal.App.3d 940, 950 [203 Cal.Rptr. 879]; see also, DeMassa v. Nunez (9th Cir. 1985) 770 F.2d 1505, 1507.) Assuming for argument's sake that Mulligan's file included uncommunicated work product which petitioner was not required to surrender, he was unquestionably obligated to surrender the balance of the file whether the case to which the file related was pending or had finally terminated.

We conclude that the evidence supports the finding that petitioner delayed unreasonably in surrendering the Mulligan case file. Mulligan's new counsel requested the file in September 1982 and petitioner did not comply until March 1983. We accept the hearing panel's implied determination that petitioner's explanation for the delay was not credible. Petitioner testified that he surrendered the file as soon as he was able to retrieve it from Norwald's estate, but his testimony on this point was vague as to both the relevant dates and the efforts he made to recover the file, and petitioner provided no documentary evidence to corroborate his testimony. Also, petitioner's testimony was inconsistent with that of his own witness, McCaslin, who stated that petitioner gave the file to him a second time for evaluation after it was retrieved from Norwald's estate. We conclude that petitioner's conduct in willfully failing to deliver the case file promptly upon the client's request violated rule 2-111 (A)(2), but that this conduct did not involve moral turpitude.

Rose v. State Bar (1989) 49 Cal.3d 646 , 262 Cal.Rptr. 702; 779 P.2d 761 
 

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