Opinion 2211

Issue

The inquiring lawyer asks whether there is an obligation to provide a copy of redacted discovery to a former client upon the client’s request post-sentencing.

Short Answer

RPC 1.4, 1.16(d) and 3.4(c) govern your inquiry and require you to comply with CrR 4.7(h)(3) when producing any discovery materials to your former client.

Analysis

After a representation has terminated, an attorney has an obligation to surrender papers to which his or her former client is entitled. See RPC 1.16(d). These papers would generally include the client’s file. See Advisory Opinion 2117 (2006); Advisory Opinion 1969 (2002); Advisory Opinion 181 (1987). Certain papers included in the client file, however, may be restricted by protective orders, confidentiality obligations, etc. that "may supersede a conflicting demand of a former client." Advisory Opinion 181. Documents subject to such restrictions therefore require separate handling and may be excepted from production with the rest of the client file. See id. In criminal cases, moreover, the criminal rules may operate to restrict the release of certain file materials to a client. See Advisory Opinion 2117 ("Ethically ... any information necessary to the adequate representation of the client or in the file at the conclusion of the representation of the client or in the file at the conclusion of the representation must be turned over to the client subject only to other law restrictions, such as the Criminal Rules.") (emphasis added). The ethics rules explicitly recognize that court rules may limit an attorney’s ability to disclose certain information to a client and require an attorney to comply with any such court rules. See RPC 1.4 (“Communication”), Comment 7 ("Withholding Information: ... Rules or court orders governing litigation may provide that information supplied to a lawyer may not be disclosed to the client. Rule 3.4 directs compliance with such rules or orders."); see also RPC 3.4(c) (a lawyer shall not "knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists").

Conclusion

In the context of your inquiry, therefore, your general obligation to produce your former client’s file is conditioned with respect to the discovery materials contained in that file, the release of which is subject to the restrictions provided in CrR 4.7(h)(3). So before you release, to your former client, any discovery materials contained in the file, you are ethically required to ensure you have fully complied with CrR 4.7(h)(3).

In a supplemental inquiry, you asked whether the availability, to your former client, of a Freedom of Information Act (“FOIA”) request changes the relevant ethical considerations. Any substantive issues presented by your FOIA inquiry are beyond the scope of the RPC Committee’s limited function, which is to assist attorneys, when asked, to interpret their ethical obligations in specific circumstances. We do note, however, that the opinion we have provided above governs an attorney’s ethical responsibilities when responding to a former client’s request for the production of discovery materials, regardless of what other, non-attorney avenues may be available to the former client through which to pursue those materials.