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MCLE Article and Self-Assessment Test

Going through Withdrawal

Attorneys face significant ethical, financial, and liability issues when withdrawing from representation 

By Edward O. Lear 

Edward O. Lear is a partner in the Beverly Hills law firm of Gerry & Lear LLP, where he specializes in representing professionals in licensing matters. Prior to cofounding Gerry & Lear in 1994, Lear was a prosecutor for the Office of Trials for the State Bar of California. 

Withdrawal from representation, whether initiated by a client or an attorney, is a normal part of everyday law practice. But several rules and statutes exist to ensure that withdrawing attorneys-even those who are fired-do not abrogate their legal and ethical obligation to protect their clients' interests.1 An improper withdrawal could result in State Bar disciplinary action as well as malpractice consequences, so attorneys must proceed with caution. Among the complex issues that attorneys may face during the withdrawal process are 1) the potential conflict between the duty to return "client papers and property" under Rule 3-700(D)(1) of the California Rules of Professional Conduct and the protection of attorney work product, 2) the viability of provisions in contingent fee agreements mandating minimum settlement figures, and 3) responsibility for post-judgment representation. 

Rule 3-700 of the California Rules of Professional Conduct delineates when an attorney must withdraw and when an attorney may withdraw. The most common grounds for mandatory withdrawal arise when: 

  • The attorney should know that no probable cause exists for the client's action and its purpose is harassment or causing injury to another.     
  • The representation would result in a violation of one of the Rules of Professional Conduct or the State Bar Act. The violations usually fall under one of two categories: conflict of interest or inability to act competently.     
  • The attorney's mental or physical condition makes the task of effectively carrying out the representation unreasonably difficult.2
Permissive withdrawal most commonly occurs when: 
  • The client insists on an illegal, unethical, or frivolous course of conduct.     
  • The client's conduct makes it unreasonably difficult to effectively represent the client.     
  • The client has breached the fee agreement.     
  • The court finds "other good cause" during litigation.     
  • The client has used the attorney to perpetrate an illegal act.3

No matter whether the attorney has grounds for withdrawal or the client seeks to terminate the attorney-client relationship, certain procedures and strictures apply. If there is an ongoing litigation, the attorney must either file a substitution-of-attorney form or bring a motion to withdraw.4 Both the client and the successor attorney need to sign a substitution-of-attorney form, which should be served on all parties. If the client has no successor attorney, the attorney of record should substitute the client in pro per-if the client is willing-because during whatever time the client takes to find another attorney, the legal matter may be compromised by the attorney's action or inaction. In all cases, the attorney seeking withdrawal must give the client reasonable notice before withdrawing so the client can secure other counsel-and the attorney must not withdraw if it would result in "reasonably foreseeable prejudice."5 

If the client refuses to sign a substitution-of-attorney form, the attorney must move to withdraw. The motion should cite a permissible ground for withdrawal under Rule 3-700 of the Rules of Professional Conduct. The attorney should be careful not to divulge information that may prejudice the client's case, so a meeting in chambers with the judge or a sidebar conference to explain the circumstances for withdrawal may be necessary. 

Rule 376 of the California Rules of Court specifies that a notice of a motion to withdraw before a court under Code of Civil Procedure Section 284(2) must be "directed to the client" (not to "all parties") and must be worded in "clear, simple, and nontechnical terms."6 The notice must be accompanied by a declaration that, in general terms, states the grounds for withdrawal (without compromising the attorney-client privilege) and explains the decision to bring a motion to withdraw in lieu of a consensual withdrawal under Code of Civil Procedure Section 284(1).7 The notice and declaration must be served on all parties and the client. 

If the attorney serves the client by mail, an additional declaration must state that the client's service address is the current residence or business address or the last-known address, and the attorney has been unable to locate a more current address.8 The order granting the motion to withdraw must state the client's last-known address and phone number and must be served in the same manner as the notice and declaration. In addition, the order must inform the client that failure to take appropriate action may result in serious legal consequences and therefore the client might wish to seek legal assistance.9 If the client is a corporation, association, guardian ad litem (except a guardian who is a relative of a child in a paternity action), personal representative, trustee, guardian, conservator, or other probate fiduciary, then the order must inform the client that 1) the client may only participate in the action through an attorney, 2) the client maintains all the obligations of a party, and 3) failure to retain an attorney may lead to an order striking the client's pleadings or entry of default.10 

When an attorney withdraws from representing a client in a nonlitigation matter, court notification is not necessary. All other withdrawal procedures must be followed. The attorney still must comply with all ethical obligations, including giving due notice to the client and taking steps to avoid prejudicing the client. 

For all client matters, litigation and nonlitigation, attorneys should protect themselves by creating a paper trail that memorializes all stages of the withdrawal process. If the withdrawal is consensual, the signing of a termination agreement is the optimal course. 

An attorney's duties to the client upon termination include taking "reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client," which include not only due notice to the client and allowing time for the employment of successor counsel11 but also notification of opposing counsel,12 turning over client files, and refunding unearned fees.13 The obligation of an attorney to avoid conduct that may foreseeably cause prejudice to the client is so stringent that an attorney may be disciplined for a violation even if the client suffered no actual prejudice.14 

If court permission is required for withdrawal, the court has a duty to warn a party of the consequences of the failure to obtain substitute counsel. Without such a warning, it is reversible error for the court to allow an attorney to withdraw.15 Notwithstanding the court's duty, a withdrawing attorney is wise to similarly inform a former client about the consequences of proceeding without substitute counsel in order to facilitate a smooth exit from the relationship. 

Absolute and Conditional Work Product
At the client's request, the attorney, pursuant to Rule 3-700(D)(1) of the Rules of Professional Conduct, must release to the client all "client papers and property," which include correspondence, pleadings, exhibits, deposition transcripts, physical evidence, expert reports, and "other items reasonably necessary to the client's representation." An attorney's duty to give clients their files cannot be conditioned on payment16 or a client's signing a substitution-of-attorney form.17 The duty is not excused because the client already has a copy of all documents in the file (the client is entitled to the originals)18 or because the client threatens a malpractice action.19 

Code of Civil Procedure Section 2018 divides work product into two categories: "conditional" and "absolute." Absolute work product "shall not be discoverable under any circumstances" and encompasses written work product that reflects an attorney's "impressions, conclusions, opinions, or legal research or theories."20 Conditional work product includes all other work product and can be discovered if the denial of discovery would unfairly prejudice a party in preparing its case or would result in an injustice.21 

According to one court of appeal opinion, "California has two conflicting absolutes, the absolute right of a client to his [or her] attorney's work product, and the absolute right of an attorney to protect his or her impressions, conclusions, opinions, and legal research or theories from disclosure."22 In cases involving attempts by former clients to obtain their case files from a former attorney, courts have concluded, matter-of-factly, that an attorney's work product belongs to the client, citing the ethical duty spelled out in Rule 3-700(D)(1).23 But Code of Civil Procedure Section 2018 sets forth a strong public policy in favor of shielding attorneys from having to turn over their work product. In fact, Section 2018 rarely allows discovery of conditional work product and limits discovery of absolute work product only to actions between an attorney and a client in which the work product is relevant to whether the attorney breached his or her duty of care.24 In those cases in which an adversary of the client seeks to obtain the attorney's absolute work product, courts have held that the attorney holds the work product privilege and the attorney need not disclose uncommunicated absolute work product-not even to the client.25 

These two lines of authority do not give clear guidance to the attorney withdrawing from representation. In decisions holding that an attorney's work product belongs to the client, the courts have made no distinction between absolute and conditional work product,26 while courts that cite Code of Civil Procedure Section 2018 usually do so in cases in which someone other than a client is trying to discover the attorney's work product. So what should attorneys do when ex-clients ask them to turn over work product-especially absolute work product? 

The Second District Court of Appeal, in a footnote, opined that Code of Civil Procedure Section 2018 and Rule 3-700(D)(1) were "in most respects compatible with each other."27 All the items specifically enumerated in Rule 3-700(D)(1) as "client papers" would constitute conditional work product under Section 2018, so they would be "entitled to qualified protection under the work product rule, but not absolute protection."28 The court concluded that a conflict between Section 2018 and Rule 3-700(D)(1) would only exist if the "other items reasonably necessary to the client's representation" that must be turned over under Rule 3-700(D)(1) also encompassed absolute work product.29 

Extrapolating from Rule 3-700(D)(1) and the requirement in the statutory work product privilege (Code of Civil Procedure Section 2018) that generally requires conditional work product to be turned over to the client upon termination, the enumerated list of "client papers and property" in Rule 3-700(D)(1) appears for the most part to constitute conditional work product. An attorney who does not turn over work product akin to those materials on the list would violate Rule 3-700(D)(1)'s ethical mandate. Further, if the client sues the attorney for malpractice, the conditional work product almost certainly would be discoverable under the test of unfair prejudice or injustice set forth in Code of Civil Procedure Section 2018(b). This result is likely even without the additional ground in Section 2018(f),30 which states that no work product privilege exists for work product that is relevant to a client's claim against an attorney for breach of duty. 

As for whether an attorney's ethical obligation under Rule 3-700(D)(1) extends to absolute work product, the statutory work product privilege again may shed some light. Code of Civil Procedure Section 2018(f) assumes the ex-client does not otherwise have access to the attorney's absolute work product. Before the addition of Section 2018(f) to the work product statutory framework, work product that reflected the attorney's thoughts or impressions was absolutely privileged.31 If Section 2018(f) did not apply to absolute work product, then it would be a dead letter (or at least its reference to "former client"), since it would not give clients any more rights than they had under Section 2018(b). Indeed, under Section 2018(f) absolute work product is discoverable by a client (or ex-client) if it is relevant to a breach of duty by the client's attorney. Thus, by implication, an attorney generally is not required to turn over absolute work product upon termination, but this cannot be a blanket rule, given the requirement of Rule 3-700(D)(1) that an attorney must promptly release specific enumerated items and "other items reasonably necessary to the client's representation." There may be instances in which absolute work product may be "reasonably necessary" to preserve the client's rights until new counsel is found. 

An important distinction exists between what is reasonably necessary to the client's representation and what will eventually be necessary to prosecute the client's case. Most if not all cases require an attorney to conduct research and pursue legal theories, form opinions on courses of action, and develop strategies for settlement negotiations and trial, among other tasks-in other words, attorneys in the course of representation inevitably produce absolute work product. That is what people hire attorneys to do. Even if the attorney and client part company during a case, eventually someone has to do the work of an attorney to successfully pursue the client's claim. 

Does an attorney's absolute work product fall under the category of "reasonably necessary to the client's representation" or "eventually necessary to pursue a client's claim"? The answer depends on the context. An attorney who terminates a relationship with a client may need to divulge some absolute work product to the client and/or the new counsel to bring everyone up to speed and prevent undue prejudice or delay in the client's action. Only in rare instances should an attorney be required to disclose all legal research and theories necessary to pursue a case to its fruition. 

If an attorney were required to make such disclosures, one can imagine the consequences. What would happen, for example, in a contingency case in which a client and subsequent counsel used a previous attorney's absolute work product to win a substantial award, then proceeded to cut the prior attorney out of the contingency and reduce the attorney's portion to "reasonable value"? Also, if such disclosures were required in all cases, the previous attorney may be exposed to a malpractice action brought by the former client if the successor attorney loses the client's case, because the successor attorney would have relied in part on the previous attorney's legal research and theories. 

When an attorney and client go their separate ways, chances are they parted company because of differing ideas about how the client's case should be handled. When a client changes attorneys for this reason, it may be because the client does not agree with the attorney's tactics, opinions, legal theories, and the like. In essence the client is replacing one attorney's absolute work product with another attorney's absolute work product. In this light, it is easier to see not only the distinction between absolute and conditional work product but also why they should be treated differently upon termination. 

These considerations remain the same in a transactional setting. Though the argument that the client paid for the attorney's work product, and is thus entitled to it, may be stronger in a transactional case, the underlying distinctions between absolute and conditional work product do not change. An attorney's absolute work product invariably plays a role in transactional activities such as the drafting of a contract or a rental agreement, because attorneys may differ in their visions of how a contract should be crafted or what methods to employ to realize their clients' goals. Like their non-transactional counterparts, such differences in method and vision may lead to conflicts with their clients necessitating the termination of their relationship. Also, similar to litigation, the more standard the transaction, the less absolute work product is involved-a situation requiring the attorney to divulge a greater percentage of his or her work product. 

Ethics opinions issued by various bar associations in California seem to be in line with this analysis. The San Francisco County Bar Association concluded that "there is no ethical obligation upon an attorney to disclose his or her uncommunicated or absolute work product, unless the failure to do so would result in reasonably foreseeable prejudice to the client's rights."32 The committee cited an attorney's ethical obligation under Rule 3-700(D) to protect the client's rights upon withdrawal, an obligation that "does not necessarily turn on the definition of 'work product' or on the interpretation of [Code of Civil Procedure Section 2018(c)]." The opinion reminded attorneys that a "client file" is not limited to documents physically present in the file and may include "intangible information." Whether prejudice is reasonably foreseeable depends on the context, including when and under what circumstances a client requests his or her file.33 What is reasonably necessary to prevent reasonable prejudice to the client may be different if the client asks for the file while the case is ongoing as opposed to after the case has been completed.34 

The San Diego County Bar Association reasoned that an attorney was not obligated to turn over absolute work product because it was the "property" of the attorney.35 Though the committee emphasized the strong policy protecting an attorney's thoughts and impressions in its opinion,36 it cautioned that its conclusion was based on legal and property rights, not professional ethics and courtesy, which could dictate a different course of conduct.37 

The Los Angeles County Bar Association, through its Professional Responsibility and Ethics Committee, also voiced that "an attorney should not govern his [or her] actions in this particular [circumstance] solely by what [the attorney] may legally be compelled to do, but should, as a matter of professional ethics and good taste, allow [the attorney's] former client or succeeding counsel to inspect and to make copies of the file."38 However, the committee transformed this rule of "ethics and good taste" into a mandatory obligation in a subsequent opinion, which proclaimed that "all of the papers constituting the withdrawing attorney's office files relating to the client's matters must be made available to the former client and the succeeding attorney."39 

The Los Angeles County Bar Association ethics committee made only an implicit distinction between absolute and conditional work product in its later opinion, which stated that a withdrawing attorney must release "all of the original papers and documents belonging to the client, including deposition transcripts, expert reports or other documents which have been paid for by the client"40-in other words, all conditional work product. With respect to all other documents, the lawyer must make them available to the former client.41 

This opinion appears to imply that mere retention of files by the withdrawing attorney would sufficiently protect the attorney's interests in absolute work product, but this simply is untrue. The absolute work product doctrine seeks to protect an attorney's thoughts and impressions-not the paper on which such thoughts or impressions may find expression. Mandating attorneys to make available their entire file, including absolute work product, is equivalent to mandating attorneys to relinquish their interests in absolute work product. In fairness to the County Bar's ethics committee, its opinion contained no discussion of absolute work product, but this omission highlights the analytical deficiencies of determining to what extent withdrawing attorneys must turn over documents based on property rights or by asking if the client paid for the documents. 

Professional ethics and courtesy should remain the guiding principles in determining what course of action to take. Obligated or not, an attorney may find that turning over absolute work product to the client may be preferable to facing a malpractice action or an unhappy ex-client who may drive other clients away.42 Attorneys should keep in mind that not everything in law practice is governed by rules, codes, or duties. People skills and common sense are just as important at times. 

Common sense may have to be tempered, however, depending on how the California Supreme Court rules in Wells Fargo Bank v. Superior Court,43 a pending case that may revisit the work-product doctrine as presented in Lasky, Haas, Cohler & Munter v. Superior Court.44 In Lasky, trust beneficiaries were attempting to remove a trustee for mismanagement of trust funds. The trust beneficiaries attempted to discover uncommunicated absolute work product generated by the trustee's counsel. The supreme court held that the attorney was the holder of the work-product privilege and need not divulge absolute work product-not even to the attorney's client.45 Lasky reasoned that despite the existence of an exception to the attorney-client privilege in an action involving a breach of duty by the attorney, no such exception existed with regard to the work product privilege.46 According to the court, the lack of an exception bolstered the "absolute language" of the absolute work product privilege,47 and the court further noted that: 

[Cases holding that work product belongs to the client] all rest upon the ethical duty of the discharged attorney to protect the interest of [the attorney's] former client by providing case files necessary to the client's continued litigation of [the client's] action.& To the extent that [these cases] state that the case file 'belongs to the client' in the absolute sense of legal title, these holdings would not necessarily be wholly supported by the ethical authority upon which they rely. The opinions only conclude that the attorney has an ethical duty to produce the case file when to refuse to do so would prejudice the former client.48

In Lasky, a third-party adversary of the client sought to discover the work product of the client's attorney-a prime example of how disclosure of work product would harm the client, and further support for the absolute language of the work product privilege.49 The trust beneficiaries in this case could not state the same policy considerations that clients seeking their attorneys' absolute work product could to argue in favor of an exception to the absolute work product privilege. The policy behind the absolute privilege is at its weakest when an attorney seeks to prevent a client access to information pertinent to a possible malpractice action.50 

In Wells Fargo,51 the case to which the supreme court granted review, the trial court had applied Lasky to deny discovery of work product materials. The facts closely mirrored Lasky: trust beneficiaries sued Wells Fargo, the trustee, for mismanaging the trust. As in Lasky, the beneficiaries sought discovery of work product generated by the trustee's attorney. The court, citing Lasky, granted a writ preventing discovery of the materials. 

The court of appeal distinguished Wells Fargo from Metro-Goldwyn-Mayer, Inc. v. Superior Court,52 which held that the work product privilege was waived when an attorney attempted to use work product generated for a former client that the lawyer subsequently opposed.53 The law firm of Christensen, White, Miller, Fink & Jacobs represented MGM and its majority shareholders, which included Tracinda Corporation, in a merger transaction.54 MGM subsequently sued its majority shareholders, including Tracinda, for allegedly engineering the merger through fraud for their own benefit.55 Christensen, White represented Tracinda in the subsequent action.56 

MGM sought absolute work product from Christensen, White regarding the merger. The trial court denied MGM's request, and the court of appeal issued a writ ordering the trial court to allow MGM to discover the work product.57 The court of appeal skirted the issue of whether Rule 3-700(D) and Code of Civil Procedure Section 2018 were in conflict by holding that Christensen, White had waived the work product privilege by aligning the firm with one client against another.58 

The Wells Fargo court held Metro-Goldwyn-Mayer inapplicable because trust beneficiaries and trustees are not joint clients of the trustee's attorney.59 But Lasky, according to Wells Fargo, was directly on point, since the trust beneficiaries were adversaries of the client seeking work product generated by the client's attorney. 

To the extent that Lasky relied on the lack of an exception to the work product privilege in the context of an attorney's breach of duty, such reasoning no longer holds true after passage of Code of Civil Procedure Section 2018(f). Lasky's reasoning with respect to clients seeking absolute work product from their attorneys, however, remains valid. An attorney's ethical obligation not to prejudice a former client's case may require an attorney to turn over absolute work product in certain cases-but, as Lasky noted, it certainly cannot support turning over all absolute work product as a matter of course. Such disclosure may not be necessary to protect a client's case,60 particularly in the context of Section 2018's strong policy in support of protecting attorneys' thoughts and impressions. 

This reasoning in Lasky is compatible with previous cases holding that an attorney's work product belonged to the client.61 The Lasky line of cases involved a third-party adversary's attempts to discover attorney work product, while cases holding that an attorney's work product belonged to the client involved attempts by a former client to obtain the file from the attorney in order to prosecute the client's case. Both lines of cases can be reconciled by a unifying theme: protecting the client. In the Lasky cases, disclosure of work product to a client's adversaries would have prejudiced the client, whereas nondisclosure to a former client may prevent the ex-client from prosecuting his or her case. In either scenario, attorneys may face a malpractice action if they compromise their client's position. 

While the supreme court may give more specific guidance in its review of Wells Fargo, a good rule of thumb is to err on the side of giving a former client absolute work product. Though such disclosure may not be mandated by ethics rules or case law, protecting the client's interests is. Most often, an attorney has very little to gain and much to lose in withholding work product from a former client. Withholding work product as a shield against a malpractice action is unethical and, after enactment of Code of Civil Procedure Section 2018(f), pointless.62 No attorney should let the emotion of being terminated by a client get in the way of the attorney's continuing obligation to protect and serve the client. 

Minimum Settlement Figure
Uncertainty over the work product doctrine is just one example of why attorneys must be equally diligent in protecting their interests upon withdrawal. Attorneys looking for an extra measure of protection may seek to affirmatively define their relationships with their clients by setting forth certain parameters in the initial fee agreement. One such parameter is the minimum settlement figure. Some contingent fee attorneys are placing minimum settlement figure provisions in retainer agreements as a technique to rely on in the event the attorney wishes to withdraw from a case later. Practitioners need to be aware, however, that the enforceability of this technique is not a sure thing. 

Attorneys who take contingent fee cases often fund their clients' cases in their entirety. As contingent fee attorneys see costs add up and the prospect for future income from such cases appears to waver, they may be forced to withdraw. In addition to economic factors, doubt about a case's prospects may generate differences of opinion between an attorney and client, which may lead to a personality conflict or worse. 

Contingent fee attorneys thus may be tempted to include in their fee agreements a provision in which their clients agree to accept any settlement above a certain amount-a minimum settlement figure. Such provisions protect the attorney from clients who have overestimated the value of their cases or those clients who insist on going to trial in spite of a reasonable settlement offer. The First District Court of Appeal has offered lukewarm support for minimum settlement figure provisions by noting that they were not "inherently wrong or unfair" if the figure agreed upon represented a "reasonable assessment of the value of a claim" and the attorney promised to attempt to obtain a greater amount.63 

Notwithstanding this assessment by one California appellate court, many ethical issues swirl around the inclusion of minimum settlement figure provisions in contingent fee agreements. These include undue influence, conflict of interest, lack of diligence, and the failure to keep clients informed of all developments in their cases. Put simply, an attorney's use of such a provision may simply be a way of trading the certainty of a dollar figure in a settlement for the uncertainty of defending against possible future malpractice or disciplinary actions. 

Probate Code Section 16004(c)64 establishes a presumption of undue influence when a transaction for a trustee/attorney's benefit occurs between the trustee/attorney and the beneficiary/client during the existence of an attorney-client relationship. Despite a provision in Section 16004(c) that exempts from the presumption of undue influence an agreement relating to "hiring or compensation," an attorney nevertheless may be forced to assume the burden of proving that a minimum settlement figure provision was the result of an arm's-length transaction with a client who possessed sufficient information and intellect to give assent.65 

The most glaring problem with a minimum settlement figure provision is that it smacks of conflict of interest, especially when it appears in the initial fee agreement. A figure that was a "reasonable assessment of the value of a claim" at the beginning of a case may not be so upon further discovery or as the circumstances of the case change. When the value of a claim takes a sharp turn upward, an unscrupulous attorney facing much hard work ahead in a case may sell out his or her client for the previously agreed-upon minimum settlement figure, even though that amount may be far lower than the current reasonable value of the case. 

An honest attorney may be equally in danger of facing a second-guessing client if the attorney obtains "only" the minimum settlement figure. The mere appearance of a lack of diligence by an attorney may sustain a lengthy malpractice suit, even if the attorney ultimately prevails. The appearance of a lack of diligence underscores the potential conflict of interest inherent in a minimum settlement arrangement. 

A minimum settlement figure may also lead attorneys to violate their ethical obligation to keep clients reasonably informed about significant developments.66 Attorneys are obligated to "promptly communicate" written settlement offers as well as "significant" oral settlement offers.67 However, once an attorney obtains an agreement from the client to settle for a specific dollar figure, the economic incentive to communicate settlement offers may disappear. Not communicating with a client is an ethical violation subject to discipline68 as well as a step down a slippery slope toward alienating a client. 

After considering the possible negative consequences built into a minimum settlement figure arrangement-for example, defending against client claims of undue influence or conflict of interest in a future malpractice action or possible discipline for not communicating with a client or not diligently representing a client's interests-the contingent fee attorney may find that a minimum settlement figure provision does not really add certainty to his or her practice. 

Judgments Subject to Vacation
Attorneys usually can find solace in the certainty of knowing that once they have carried a case to its conclusion, they can relax in the knowledge that their labors on the case have ended. But a recent court of appeal opinion reminded attorneys that representation may continue after final judgment when the judgment is "subject to vacation." 

In Maxwell v. Cooltech, Inc.,69 the trial court dismissed plaintiff Maxwell's complaint with prejudice upon the plaintiff's own motion. Maxwell then moved to vacate the dismissal under Code of Civil Procedure Section 473 because he never agreed to a dismissal with prejudice. The motion was served on the opposing party (Cooltech)'s attorney of record, who challenged the court's jurisdiction. The court upheld the trial court's finding that the attorney-client relationship continued and the attorney could accept service for Cooltech. Though the judgment was final, it was subject to vacation-and since a motion under Section 473 must be brought within a reasonable time not exceeding six months, the attorney-client relationship will not drag on indefinitely.70 

Does the Maxwell rationale then apply to final judgments subject to vacation on appeal? The short answer appears to be no. Appeals are discrete from trials, and a trial attorney can withdraw before an appeal is filed as long as the attorney protects the client's interests by, for example, filing a notice of appeal.71 Unlike an appeal, the Code of Civil Procedure Section 473 motion in Maxwell was considered part of the trial process and not discrete. Maxwell warns attorneys that an attorney's primary duty is to protect the client's interests, and carrying out that duty might require an attorney to represent a client after final judgment, or even after the client hires another lawyer.72 Post-judgment representation might include obtaining postponements or making court appearances until the new attorney can take over. 

If a client's interests could be prejudiced by the assertion of an attorney's interests, invariably the attorney's interests must yield. This is because the attorney-client relationship is not a two-way street. The attorney most certainly provides his or her services to the client for compensation, but only the attorney is a fiduciary to the client, not vice versa. As in any fiduciary relationship, the attorney must protect the client from any adverse impact with respect to the legal representation and may pursue efforts to further the client's objectives of which the client may be completely unaware. Before an attorney reaches for a copy of the Rules of Professional Conduct, the Code of Civil Procedure, or a treatise on ethics to answer the question, "What can I do?" or, "What must I do?," the attorney should reflect upon the fiduciary relationship with the client and the oath he or she took upon being admitted to the bar and ask, "What should I do?" Despite the many complex issues involved, the answer should come easily. 

1 In re Riley, 3 Cal. State Bar Ct. Rptr. 91, 115 (Review Dept. 1994).

2 Cal. Rules of Professional Conduct Rule 3-700(B). 

3 Cal. Rules of Professional Conduct Rule 3-700(C). 

4 Code Civ. Proc. §284. 

5 See discussion in text, infra. 

6 Cal. R. of Ct. 376(a). 

7 Cal. R. of Ct. 376(b). 

8 Cal. R. of Ct. 376(c). 

9 Cal. R. of Ct. 376(d). 

10 Id. 

11 See Cal. Rules of Professional Conduct Rule 3-700(A)(2). 

12 Id. 

13 See Cal. Rules of Professional Conduct Rules 3-700(A)(2) and 3-700(D). 

14 In re Riley, 3 Cal. State Bar Ct. Rptr. 91, 115 (Review Dept. 1994). 

15 Urethane Foam Experts v. Latimer, 31 Cal. App. 4th 763, 766-67 (1995). 

16 See id. 

17 In re Myrdall, 3 Cal. State Bar Ct. Rptr. 363, 377 (Review Dept. 1995). 

18 In re Hanson, 2 Cal. State Bar Ct. Rptr. 703, 710 n.6 (Review Dept. (1994) (citing Friedman v. State Bar, 50 Cal. 3d 235, 244 (1990)). 

19 In re Lane, 2 Cal. State Bar Ct. Rptr. 735, 748 (1994). 

20 Code Civ. Proc. §2018(c). 

21 Code Civ. Proc. §2018(b). 

22 Metro-Goldwyn-Mayer, Inc. v. Superior Court, 25 Cal. App. 4th 242, 248 (1994). 

23 See id. at 246-48 (citing Weiss v. Marcus, 51 Cal. App. 3d 590, 599 (1975), Kallen v. Delug, 157 Cal. App. 3d 940, 950 (1984), and Matull & Assoc. v. Cloutier, 194 Cal. App. 3d 1049, 1056 (1987)). 

24 Code Civ. Proc. §2018(f). 

25 See, e.g., Lasky, Haas, Cohler & Munter v. Superior Court, 172 Cal. App. 3d 264, 278 (1985) (citing the policy behind Code Civ. Proc. §2018). 

26 Metro-Goldwyn-Mayer, 25 Cal. App. 4th 242, 248. See text, infra. 

27 Metro-Goldwyn-Mayer, 25 Cal. App. 4th at 249. 

28 Id. 

29 Id. 

30 Code Civ. Proc. §2018(b) states that "[i]n an action between an attorney and his or her client or former client, no work product privilege under this section exists if the work product is relevant to an issue of breach by the attorney of a duty to the attorney's client arising out of the attorney-client relationship." 

31 This rule did not apply to disciplinary proceedings involving the State Bar. See Code Civ. Proc. §2018(e). 

32 S.F. County Bar Ass'n Legal Ethics Comm., Op. No. 1990-1 (1990), at 4. See also discussion in Metro-Goldwyn-Mayer, 25 Cal. App. 4th at 248 n.6 (1994). 

33 S.F. County Bar Ass'n Legal Ethics Comm., Op. No. 1990-1 (1990), at 4. 

34 Id. 

35 S.D. County Bar Ass'n Legal Ethics Comm., Ethics Op. No. 1984-3 (1984), at 2. 

36 To the extent that the opinion, id., relied on the "unequivocal nature of the absolute work product privilege," the enactment of Code Civ. Proc. §2018(f) would undermine such reliance. See discussion in text, infra. 

37 S.D. County Bar Ass'n Legal Ethics Comm., Ethics Op. No. 1984-3 (1984), at 3. 

38 L.A. County Bar Ass'n Professional Responsibility and Ethics Comm., Ethics Op. No. 330 (1972). 

39 L.A. County Bar Ass'n Professional Responsibility and Ethics Comm., Ethics Op. No. 362 (1976). 

40 Id. 

41 Documents that have been billed to the client but for which no payment has been received (either because the client has not paid or because the bill has not yet been sent out) fall into the same category as documents "paid for by the client." The client's actual payment or nonpayment for certain documents does not determine whether the documents are considered absolute or conditional work product. From the Los Angeles County Bar Association's point of view, the determinant appears to be whether the documents are of the type normally billed to and paid for by the client. But see discussion in text, infra. 

42 See Dale A. Hudson, How to Withdraw from Representation, Los Angeles Lawyer, Mar. 1994, at 26. 

43 Wells Fargo Bank v. Superior Court, 49 Cal. App. 4th 1320 (1996). 

44 Lasky, Haas, Cohler & Munter v. Superior Court, 172 Cal. App. 3d 264 (1985). 

45 Id. at 278. 

46 Id. at 273-74. Of course, this is no longer true in light of Code Civ. Proc. §2018(f). See discussion in text, infra. 

47 Lasky, 172 Cal. App. 3d at 274. 

48 Id. at 277. 

49 Id. at 277-78. 

50 Id. at 274 n.4. 

51 Wells Fargo Bank v. Superior Court, 49 Cal. App. 4th 1320 (1996). 

52 Metro-Goldwyn-Mayer, Inc. v. Superior Court, 25 Cal. App. 4th 242 (1994). 

53 Id. at 249-50. 

54 Id. at 244. 

55 Id. at 244-45. 

56 Id. at 245. 

57 Id. at 246, 250. 

58 Id. at 249. 

59 Wells Fargo Bank v. Superior Court, 49 Cal. App. 4th 1320, 1339-40 (1996). 

60 Lasky, Haas, Cohler & Munter v. Superior Court, 172 Cal. App. 3d 264, 277 (1985). 

61 See In the Matter of Hanson, 2 Cal. State Bar Rptr. 703, 710 n.6 (Review Dept. 1994) (citing Friedman v. State Bar, 50 Cal. 3d 235, 241 (1990)). 

62 In the Matter of Lane, 2 Cal. State Bar Ct. Rptr. 735, 748 (1994). 

63 Ramirez v. Sturdevant, 21 Cal. App. 4th 904, 918 (1994). 

64 Id. at 917; Walton v. Broglio, 52 Cal. App. 3d 400, 403 (1975). 

65 See Ramirez, 21 Cal. App. 4th at 917-18. 

66 See Cal. Rules of Professional Conduct Rule 3-500. 

67 See Cal. Rules of Professional Conduct Rule 3-510(A)(2) and subsequent comment. 

68 See Cal. Rules of Professional Conduct Rule 3-500 (Failure to Communicate with Clients) and Rule 3-510 (Failure to Communicate a Settlement Offer). 

69 Maxwell v. Cooltech, Inc., 57 Cal. App. 4th 629 (1997). 

70 Id. at 632-33. 

71 Ramirez v. Sturdevant, 21 Cal. App. 4th 904, 918 (1994). 

72 See In re Riley, 3 Cal. State Bar Ct. Rptr. 91, 115 (Review Dept. 1994) ("An attorney's duties to a client do not cease to exist simply because the client is also represented by another attorney."). 

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