Court Upholds Client’s Rights to Lawyers’ Papers : Litigation: The appeal court ruiling was the first in California directly holding that a client has access to what attorneys call their ‘work product.’

An attorney must turn over notes about research and legal theories to a client when a case is over, even when the lawyer does not want to do so because the client has sued for legal malpractice, a state appeals court in San Diego has ruled.

Although state law expressly permits a lawyer to keep working papers secret under “any circumstances,” the 4th District Court of Appeal said that rule does not make sense when a client asks for the materials, since the only reason a lawyer would do the work to create those papers would be to serve the client.

The opinion, in a case sparked by a San Diego lawsuit involving six investment partners, was the first California decision directly holding that a client has access to the materials, which lawyers call “work product.” A lawyer in the case said the decision was crucial to avoid further erosion of public confidence in attorneys.

“If the court had decided that the work-product privilege shielded lawyers from discovery of work they had done for a particular client, the public would have perceived that as sneaky lawyers covering their own behinds through some technicality,” said Bruce A. Ray of San Diego, the lawyer for the six clients seeking the materials from their former attorneys.

“I hope the public will perceive the opinion as affirming the fact that attorneys are always accountable to their clients and have to make a full and fair disclosure to them,” Ray said. “In my opinion, that’s always been the intent of the law.”

Janice Gay Gibbons, who represented the San Diego law firm and two individual attorneys who were sued, said the public’s perception of lawyers would not have been affected negatively if the 4th District had ruled that lawyers could keep clients from their files. An appeal to the California Supreme Court is likely, she said.

“We believe the decision is wrong and the work product of an attorney should be protected from disclosure in all circumstances, according to the statute,” she said.

The case began in a 1985 investment in the Park Manor Hotel near Balboa Park, which was to be converted to a residential facility for senior citizens, Ray said.

The investors, Marjorie P. Carroll and five others, lost more than $1 million, and, in April, sued the attorneys who represented them in the deal--Shearn H. Platt, Martha Lessman Katz and the Rudick, Platt & Victor law firm in San Diego--alleging malpractice.

As part of the malpractice suit, the clients asked the lawyers to hand over notes relating to their file. The lawyers withheld 49 documents, claiming they didn’t have to produce them because they were privileged.

After San Diego Superior Court Judge Kevin J. Midlam ordered the lawyers to turn over the notes, they turned to the 4th District Court of Appeal.

In an opinion issued Oct. 11, the three-judge panel unanimously denied their appeal, rejecting a number of contentions by the investors’ attorneys in an opinion dealing with what even Ray called a “hyper-technical” area of the law.

Previous decisions had mentioned in passing or implied that an attorney could withhold files from a former client, the investors’ attorneys noted. But Judge Gilbert Nares pointed out that those cases were “gratuitous,” since they involved suits brought by someone other than a client.

Nares conceded that another branch of the 4th District, in Santa Ana, had ruled Oct. 5 that a lawyer sued for malpractice could keep a client from seeing the case files. But that case was decided wrongly, Nares said, because it did not examine the full context of the “work product” rule.

The language of the statute allows an attorney to suppress a “writing” relating to research, opinions or theories under “any circumstances,” Nares said.

The meaning of those words seems plain, Nares said. But “the issue is not what the words mean, but what the Legislature meant by them,” he said. And the Legislature could not possibly have meant for attorneys to keep their clients in the dark, Nares said.

The purpose behind the rule is to assure that a lawyer can work for a client without having to worry that, later, the opposing side in a case will be able to go through the files, Nares said. In this case, since the clients themselves, not the opposition, wanted to see the files, that concern was not relevant, he said.

The investors’ attorneys suggested that the rule be interpreted for “the good of all clients,” despite the “hardship” that might cause in a particular case--particularly a malpractice suit, in which an attorney’s written thoughts might be at the center of the suit.

In a legal malpractice case, Nares said, “this paternalistic approach is not only transparently self-serving but incorrect. An attorney apprehensive about the risk of a malpractice suit will, if anything, produce more copious notes and writings to protect himself rather than be ‘chilled’ from documenting his thoughts, ideas and research.”

Lastly, Nares said, the law has to be viewed in light of the ethical rules designed to guide California lawyers, one of which requires an attorney who is discharged to deliver a client’s file to the client or to another attorney.

“A client who discharges his lawyer, but does not sue, should not receive more documents than one who discharges his lawyer, but additionally sues him for malpractice,” Nares said.

Judges Howard B. Wiener and William L. Todd Jr. joined in the opinion.

Platt was out of the country and could not be reached for comment. Katz did not return a phone call Monday to her office.