The opinion interprets rules 1.4, 1.6, 1.7, 1.9, 1.10, 2.4, 2.4.1, 3.3, 3.7, and 8.4 of the Rules of Professional Conduct of the State Bar of California; Business and Professions Code sections 6068, subdivision (e) and 6106.

The opinion digest states: California Rules of Professional Conduct do not specify a fixed retention period for closed client files. In closed civil matters, a lawyer’s file retention duties generally turn on the lawyer’s obligations as the bailee of the former client’s papers and property and the lawyer’s duty to avoid reasonably foreseeable prejudice to the former client. Original documents and property furnished to the lawyer by the former client and items of intrinsic value must be retained by the lawyer and cannot be discarded or destroyed without the former client’s consent. Other client materials and property in civil cases may be destroyed, absent a contrary agreement, after the lawyer uses reasonable means to notify the A lawyer may ethically testify as an expert witness in a matter adverse to a former client provided that the lawyer’s testimony does not injuriously affect the former client in any matter in which the attorney formerly represented the client, disclose information acquired by virtue of the representation which is protected by Business and Professions Code section 6068(e) or rule 1.6, or use such information to the disadvantage of the former client. In certain circumstances, however, judicially developed principles of disqualification may prevent a lawyer whose testimony would be permissible under the Rules of Professional Conduct from serving as an expert witness.

 

No ethical principle bars the law firm of a lawyer that has previously testified as an expert witness from subsequently representing a client who is adverse to the party on whose behalf the lawyer previously testified. If the lawyer remains under common law or express contractual obligations stemming from the lawyer’s prior expert role and respecting those obligations would significantly limit the firm’s representation of the firm’s client, then the law firm must obtain the client’s informed written consent prior to the representation. See rule 1.7(b). Even if there is no material limitation conflict under rule 1.7(b), the law firm is required to make written disclosure of the lawyer’s continuing legal obligation to the adverse party under rule 1.7(c)(1).

 

A lawyer should carefully consider, in conjunction with law firm management, whether a lawyer can ethically serve as an expert witness against a current client of the lawyer’s law firm in an unrelated matter. Even if a lawyer does not disclose or use confidential information of the law firm’s current client, the potential expert retention may implicate rules 1.4. 1.6, 1.7, and duties of loyalty, for the lawyer, the law firm, or both. Depending on the circumstances, informed written consent under rule 1.7(b), or written disclosure of the relationship under rule 1.7(c)(1), may be required.

At its January 31, 2025, meeting, and in accordance with their procedures, COPRAC tentatively approved Proposed Formal Opinion Interim No. 20-0001 for a 60-day public comment distribution.