Proposed Amended California Rules of Professional Conduct Regarding File Release and Retention Duties
The State Bar seeks public comment regarding proposed amended California Rules of Professional Conduct addressing an attorney’s file release and retention duties in certain criminal matters
Deadline: December 2, 2019
Background
The California Rules of Professional Conduct are attorney disciplinary rules. By statute, the Board of Trustees has the authority to adopt amendments to the rules that are binding upon attorneys once those rules are approved by the Supreme Court of California. (Business and Professions Code sections 6076 and 6077.)
On September 18, 2018, Assembly Bill 1987 was signed into law. This bill amended California Penal Code section 1054.9 by expanding the right to access post-conviction discovery materials to include cases where the defendant is convicted of a serious or violent felony resulting in a sentence of 15 years or more. The bill also added an obligation on trial counsel in such matters to retain a copy of a former client’s files for the term of the client’s imprisonment.
Assembly Bill 1987 contains an uncodified Section 3 that requested the State Bar to “study the issue of closed-client file release and retention by defense attorneys and prosecutors in criminal cases.” Section 3 further states that if such a study is undertaken, the State Bar is directed to ascertain whether the revised California Rules of Professional Conduct, which became effective on November 1, 2018, are sufficiently clear as to “an attorney’s duties related to file release and retention upon finality of the case or termination of the attorney-client relationship.” This section also provides that if the rules are found to be insufficiently clear with respect to post-conviction discovery, then the State Bar shall consider: (1) whether a clarifying advisory ethics opinion should be issued; and, (2) whether a new or amended Rule of Professional Conduct should be proposed to address the deficiency.
In accordance with Section 3, the Committee on Professional Responsibility and Conduct (“COPRAC”) conducted a study. COPRAC met on June 7, 2019, and July 26, 2019, to discuss the issue of closed-client file release and retention by defense attorney and prosecutors in criminal cases.
Discussion/Proposal
In order to address these important ethical and legal obligations in the California Rules of Professional Conduct, COPRAC recommends the following amendments to the existing rules:
Amend Comment [5] to rule 1.16 (Declining or Terminating Representation) by adding a sentence stating that in certain criminal matters a lawyer may be required to retain a copy of a former client’s file for the term of the client’s imprisonment.
Amend Comment [7] to rule 3.8 (Special Responsibilities of a Prosecutor) by citing to specific Penal Code statutes that require a prosecutor to preserve certain types of evidence, as well as case law requiring a prosecutor to comply with a court’s file preservation orders.
Amend Comment [3] to rule 1.4 (Communication with Clients) by adding a cross-reference to the Comment [5] to Rule 1.16.
At its meeting on September 19, 2019, the Board of Trustees’ Regulation and Discipline Committee considered these three proposed amendments and authorized a 60-day public comment period.
State Bar of California Standing Committee on Professional Responsibility and Conduct
Deadline
December 2, 2019
Direct comments to
Comments should be submitted using the online Public Comment Form. The online form allows you to input your comments directly and can also be used to upload your comment letter and/or other attachments.
However, if you cannot use the online form, comments may be submitted by mail to the address indicated below.
Angela Marlaud Office of Professional Competence State Bar of California 180 Howard Street San Francisco, CA 94105-1639 Phone: 415-538-2116 Email: angela.marlaud@calbar.ca.gov
Please reference the specific rule number in your comments.
