Opinion 202401D

Advisory Opinion: 202401
Year Issued: 2024
RPC: 1.6, 1.7, 1.15A,1.16(d)
Issue: What documents does RPC 1.16(d) require a lawyer to surrender upon termination
of representation?
SUMMARY
This opinion supplements Advisory Opinion 181 by addressing several categories of documents
commonly found in a client file. Advisory Opinion 181 established a presumption that a client has
full access to their file with limited exceptions. The format of a document – whether paper or
digital, or whether handwritten, typed, texted, or voice recording – is not material to the issue
whether it must be included in a file transfer. Advisory Opinion 181 directs that “the client’s
interests must be the lawyer’s foremost concern,” which means the proper focus is on the content
of the document and the relevant question is whether the document might foreseeably have value
in protecting the client’s interests in the instant matter or a future one. When in doubt, the lawyer
should provide all documents that may be useful to the client in benefiting fully from the services
provided by the lawyer.
DISCUSSION
When a lawyer or client terminates representation, Rule 1.16(d) of the Washington Rules of
Professional Conduct (RPC) requires the lawyer to take reasonable steps to protect the client’s
interests, including but not limited to, surrendering papers “to which the client is entitled.” Neither
that rule nor its comments elaborate on the meaning of that phrase or define the commonly used
term “file.” [n.1] Comment [9] adds that “a lawyer must take all reasonable steps to mitigate the
consequences to the client.”
Washington Advisory Opinion 181 (Asserting Possessory Lien Rights and Responding to Former
Client’s Request for Files), [n.2] issued in 1987 and amended in 2009, discusses the documents
that a lawyer must deliver in response to a former client’s request for the file. It states: “Subject
to limited exceptions, this Rule obligates the lawyer to deliver the file to [sic] client.” In discussing
exceptions, the opinion notes that a protective order or confidentiality obligation might take
precedence over the client’s demand and then applies the following standard: whether the lawyer
can reasonably conclude that the withholding of particular documents would not prejudice the
client. Advisory Opinion 181 notes that “the client’s interests must be the lawyer’s foremost
concern,” and it offers the following examples of documents that might reasonably be withheld
based on lack of prejudice: “drafts of papers, duplicate copies, photocopies of research material,
and lawyers’ personal notes containing subjective impressions such as comments about
identifiable parties.” This opinion provides guidance regarding the application of Advisory
Opinion 181’s standard to a broader range of documents typically associated with a lawyer’s
representation of a client. [n.3]
A. Documents to Which the Client Is Entitled
Clients expect to receive and lawyers should transfer at least the following types of documents:
documents provided by the client, communications between the lawyer and parties outside the
lawyer’s firm [n.4], documents filed with a tribunal or agency (or completed but not yet filed),
court orders and records, transactional documents (executed or ready for execution), corporate
records, legal opinions, documents received from third parties (including but not limited to
discovery [n.5] and due diligence), and third-party reports or assessments. Such documents are
clearly necessary to protect the client’s interests. The client is entitled to receive these documents
except in certain limited instances when, as recognized in Advisory Opinion 181, the lawyer owes
a superseding duty to a third-party – for example, under a court order or a confidentiality
agreement. See also Washington Advisory Opinion 2211 (2011).
B. Documents to Which the Client Is Typically Entitled
Advisory Opinion 181 identified drafts, copies of research material, and certain types of notes as
documents that might be withheld, but only if the lawyer reasonably concludes that withholding
the documents will not prejudice the client. In evaluating whether a document may be withheld,
the lawyer should – consistent with the guidance in that opinion that the client’s interests must be
the lawyer’s “foremost concern” – ensure that the client receives all the material that would be
useful in benefiting fully from the services the lawyer was engaged to provide.
Drafts. Draft documents circulated outside the lawyer’s firm will be transferred as part of the
lawyer’s external communications. Internal drafts of documents not yet finalized will presumably
have value to the client or successor counsel in minimizing both delay and cost in continued
representation. With regard to internal drafts of completed documents, this opinion does not
address the lawyer’s ordinary practice of preserving or discarding such documents during the
course of representation. [n.6] However, if the lawyer has retained such drafts in the file that has
been requested, the client would generally be entitled to them. CBA Ethics Opinion 104 Surrender
of File to the Client Upon Termination of Representation (Colorado 1999; revised 2018) at 8, FN
22 and FN 23; Alaska Bar Ass’n Ethics Op. 2003-3 (2003) at 3; Arizona RPC 1.16 Comment [9].
Copies of Research Material. Advisory Opinion 181 identified photocopies of research material
in the client file as items that a lawyer may withhold if the lawyer reasonably concludes there is
no prejudice to the client. Ordinarily, however, protecting the client’s interests will entail
transferring the research material that has been maintained in the client file so to avoid duplication
of effort or expense and provide the client the full benefit of the lawyer’s legal services. An
exception is noted below in the case of research that discloses confidential information of another
client.
Lawyer’s Notes. A document is not excepted from transfer if it is written in the lawyer’s
handwriting or if it is typed but not shared with others. The client’s entitlement to such a document
depends on its contents. Advisory Opinion 181 identified notes containing subjective impressions,
such as comments about identifiable persons, as those that might reasonably be withheld. In
contrast, notes containing factual information should be included in the file transfer to ensure the
client receives the full benefit of the lawyer’s work. If notes contain both subjective impressions
and factual information, and if the lawyer wishes to withhold the subjective impressions, the notes
should be redacted or summarized to protect both the client’s and the lawyer’s interests. CBA
Ethics Opinion 104 Surrender of File to the Client Upon Termination of Representation (Colorado
1999, revised 2018) at 8; see also Arizona RPC 1.16 Comment [9]; Iowa Supreme Court Attorney
Disciplinary Board v. Gottschalk, 729 N.W.2d 812 (2007) at 820. Finally, some notes may fall
into a third category – notes made in the course of brainstorming ideas or planning tasks. Such
notes, having only temporary value, need not be included in the file transfer if their value has
expired. See Section E below.
Internal Email and Memos. Internal emails and memos created while performing substantive or
billable work are not excepted from transfer by virtue of the fact that they have not been circulated
outside the lawyer’s firm. (In contrast, the client is not entitled to internal administrative
documents, as discussed below.) The lawyer’s evaluation of whether internal emails or memos
might have value to the client must focus on their content. Generally speaking, internal documents
created while working to accomplish the client’s objective should be transferred to ensure the
client receives the full benefit of the services agreed upon with the lawyer. Examples of such
documents include, but are not limited to, summaries of conversations and consultations,
deposition summaries, reports on due diligence for transactions, and memoranda regarding
research or analysis of legal issues. On the other hand, emails about scheduling or filing logistics
would ordinarily be considered inconsequential. See Section E below.
C. Documents to Which the Client Is Not Entitled
For convenience, a lawyer may file documents under the client’s matter code even though the
documents were not generated while performing substantive or billable work on the client’s matter.
Examples of such documents might include: reports from the lawyer’s conflicts database, which
may identify other clients and parties involved in the representation of other clients; intake forms
and approvals; pre-engagement assessments of the client; documents regarding staffing or
personnel matters; time and expense records; and draft invoices created prior to exercise of the
lawyer’s judgment about billing for services provided. These types of documents are generated as
a matter of course in the business of running a law practice, not to accomplish the client’s objective
in the representation. The client is not entitled to such administrative or practice management
documents. CBA Ethics Opinion 104 Surrender of File to the Client Upon Termination of
Representation (Colorado 1999; revised 2018) at 7-8; Oregon Formal Op. 2017-192 (2017) at 4.
A lawyer may also, for convenience of reference, place in a client’s file a copy of a memo that was
prepared for another client or other material containing information relating to the representation
of other clients. In this circumstance RPC 1.6 precludes the lawyer from including such material
in the file transfer. Alaska Bar Ass’n Ethics Op. 2003-3 (2003) at 2; Oregon Formal Op. 2017-
192 (2017) at 3-4.
From time to time a lawyer may seek an ethics consultation, such as with a colleague in the same
firm, with the WSBA, or by hiring outside counsel. The purpose of such a consultation is to
comply with the Rules of Professional Conduct, not to advance the client’s interests. The client is
not entitled to documents reflecting such a consultation. ABA Formal Op. 471 (2015) at 6; Oregon
Formal Op. 2017-192 (2017) at 3-4. [n.7]
D. Issues that May Arise in Implementation of File Transfers
Charges. It is not uncommon for disputes to arise between lawyers and their former clients
regarding charges involved in surrendering or transferring a file. Advisory Opinion 181 states as
its summary conclusion: “in the absence of an express agreement to the contrary . . . if the lawyer
wishes to retain copies [of the file] for the lawyer’s use, the copies must be made at the lawyer’s
expense.” Although the lawyer may have previously given the client copies of important
documents, upon the client’s first request for surrender or transfer of the file, the lawyer should
provide all documents to which the client is entitled. The lawyer may charge for the first copy if
an express agreement so provides and charge is reasonable. If the client subsequently requests
additional copies of the file, the lawyer may require the client to pay a reasonable charge for each
duplicate copy. [n.8] RPC 1.5 (b) states: The scope of the representation and the basis or rate of
the fee and expenses for which the client will be responsible shall be communicated to the client,
preferably in writing, before or within a reasonable time after commencing the representation,
except when the lawyer will charge a regularly represented client on the same basis or rate. Any
changes in the basis or rate of the fee or expenses shall also be communicated to the client. Upon
the request of the client in any matter, the lawyer shall communicate to the client in writing the
basis or rate of the fee The best practice for the lawyer would be to outline the expenses for extra
copies of the file at the beginning of representation in an engagement agreement. The likelihood
of a dispute regarding charges associated with a file transfer might be reduced by addressing this
scenario in the engagement agreement.
Editable Format. If a client requests that documents be provided in an accessible and editable
electronic format, the lawyer must provide such documents as already exist in that format. The
client is entitled to receive the file in the format in which it is maintained. Providing documents
in an editable format is a “reasonably practicable” step the lawyer is obligated to take to protect
the client’s interests. RPC 1.16(d); CBA Ethics Op. 104, Surrender of File to the Client Upon
Termination of Representation (Colorado 1999; revised 2018) at 5.
Surrendering a File to Former Joint Clients. When a lawyer represents multiple clients in a
single engagement, the engagement agreement will typically reflect the clients’ express agreement
to share all information. RPC 1.7 Comment [31]. If such a joint representation terminates, each
client is entitled to receive the entire file. In situations where there is a different express agreement
among the clients, or where the lawyer has commingled documents from the joint representation
with documents from separate representation of one of the joint clients, the lawyer will need to
segregate the portions of the file to which one or more of the multiple clients is not entitled. New
York State Bar Ass’n Opinion 1249 (2023).
Safeguarding the File During Transfer. As required by RPC 1.6(c) (Confidentiality) and RPC
1.15A (Safeguarding Property), the lawyer should transfer the file in a secure manner. When
transmitting a physical file, the lawyer should use a delivery method that deposits the package in
a safe location and permits the package to be tracked. A digital file should be secured through use
of appropriate technology, such as by encryption of mobile media or requirement of credentials to
access a file-sharing service.

E. Additional Observations
Neither RPC 1.16(d) nor this opinion requires a lawyer to review every document in the file to
apply this standard. This opinion explains how a lawyer should approach an evaluation of
individual documents or categories of documents if the lawyer wishes to transfer only the
minimum number of documents required by RPC 1.16(d). For other reasons, such as maintaining
positive relationships with former clients, avoiding disputes, or improving law firm efficiency, a
lawyer may prefer to limit the scope of the file review and decide to transfer more documents than
the Rule minimally requires.
Similarly, neither RPC 1.16(d) nor this opinion requires a lawyer to retain documents that the
lawyer would not retain if the lawyer were continuing representation of the client in the matter. In
other words, during the representation the lawyer may prune the file of documents that have
outlived their temporary value if the client’s interests do not require preservation. Alaska Bar
Ass’n Ethics Op. 2003-3 at FN 3 (“[T]his opinion does not create any new duty to retain any
particular document”); Arizona Op. 15-2 (“The lawyer may restrict ‘the file’ to documents that
actually assist the lawyer in competently and diligently representing the client”); Oregon Formal
Op. 2017-192 (2017) at 2 and FN 1 (a client file is “the sum total of all documents . . . that the
lawyer maintained in the exercise of professional judgment for use in representing the client”);
ABA Formal Op. 471 at 5 (“the lawyer must surrender . . . correspondence issued or received . . .
on relevant issues, including email and other electronic correspondence that has been retained
according to the firm’s document retention policy”).
Endnotes
1. The scope of this opinion is limited to interpretation of the Washington Rules of Professional
Conduct. Legal issues regarding ownership of property are outside its scope.
2. For a discussion of possessory lien rights, refer to Advisory Opinion 181.
3. Washington Advisory Op. 1185 (1988) applied a similar standard in the related context of file
retention. It stated that “a lawyer has an obligation to determine whether anything in [sic] file may
have a reasonably foreseeable benefit to the client in the future” and, if so, to retain it or return it
to the client.
4. Washington Advisory Op. 181 treats documents stored electronically in the same way as paper
documents. Accordingly, the written communications subject to transfer include email, voicemail
recordings, and text messages as well as formal letters, if they meet the standard set forth in this
opinion. Oregon Formal Op. 2017-192 (2017) at 3. See also ABA Formal Op. 471 at 5 (deliver
“correspondence issued or received … on relevant issues, including email and other electronic
correspondence … ” (emphasis added).
5. This opinion does not address a criminal defendant’s request for discovery, which is governed
by the state rules of criminal procedure and case law. See, e.g., State v. Padgett, 4 Wn. App. 2d
851, 424 P.3d 1235 (2018); State v. Murry, 24 Wn. App 2d 940, 523 P.3d 794 (2022). This opinion
addresses documents that would normally be provided in routine transitions between counsel and
a client. It does not purport to establish standards for discovery in criminal or civil litigation cases.
6. This opinion does not address documents subject to a litigation hold.
7. This opinion does not address discovery in litigation of documents relating to an ethics
consultation. See VersusLaw, Inc. v Stoel Rives, LLP, 127 Wn. App. 309, 111 P.3d 866 (2005).
8. Courts in some narrow circumstances involving clients being held in custody at facilities that
prohibit electronic devices have sometimes required that electronic file materials be provided to
the clients concerned in paper form even if the clients were given electronic copies earlier. We do
not suggest that this is a general standard outside limited circumstances. See State v. Wallmuller,
No. 37347-9-III (Wash. Ct. App. May. 26, 2020), Washington State Advisory Opinion 2117 and
prior Footnote 5. Note GR 14.1 (a) – “Unpublished opinions of the Court of Appeals are those
opinions not published in the Washington Appellate Reports. Unpublished opinions of the Court
of Appeals have no precedential value and are not binding on any court. However, unpublished
opinions of the Court of Appeals filed on or after March 1, 2013, may be cited as nonbinding
authorities, if identified as such by the citing party, and may be accorded such persuasive value
as the court deems appropriate.”