Lawyers must provide information to former clients, but there are limits, new ABA ethics opinion says
Lawyers sometimes have to provide additional information to former clients and their new attorneys, even if the information is not found in the former client’s file, according to an ABA ethics opinion released Wednesday.
That does not include generating new work product, according to Formal Opinion 520 from the ABA’s Standing Committee on Ethics and Professional Responsibility.
Additionally, the former lawyer is not responsible for providing information if it can be found elsewhere or if the inquiry involves a legal malpractice investigation, the opinion states.
Lawyers’ duties to former clients flows from ABA Model Rule 1.16(d), which provides that “upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests.”
The formal opinion calls this a “limited duty,” in part because most of the time, a lawyer’s obligations to a former client are satisfied by providing the former client’s file to the client or successor counsel.
There are times when a lawyer must do more than provide the former client’s file. Admittedly, Rule 1.16 does not discuss this either in the text or comments. However, other areas of law show that sometimes lawyers must do more.
For example, criminal law standards provide that trial counsel often must provide information to a former criminal client’s appellate counsel. Similarly, a lawyer might have to provide additional information to a client for whom the lawyer used to serve as an agent.
“Taken together, these authorities implicitly recognize that ‘to protect a client’s interests,’ it is sometimes necessary for a lawyer who terminated, or is terminating, a representation to convey information that was not recorded and maintained in the client’s file,” the opinion states.
The duty is limited because it must be reasonably practicable to comply. The lawyer does not have to comply if the matter involves “a different matter from the one in which the lawyer represented the former client,” the opinion states.
Also, the lawyer is not required to educate the former client or successor counsel on the law.
The opinion concludes with three illustrations in which this additional duty under Rule 1.16(d) may apply. The first involves a lawyer who represented a client in a state trial court criminal matter. Post-conviction counsel for the client may request additional info from the trial counsel, such as about strategic decisions, not found in the file. In this case, trial counsel has a limited duty to answer questions from post-conviction counsel.
The second illustration involves a lawyer who represented a client in the sale of a business. Successor counsel may have questions about why certain terms were omitted from the sales contract. The lawyer must answer such questions from successor counsel because it is “important to a full understanding of the status of the ongoing transactional matter.”
In the third illustration, a lawyer represented a client in the negotiation of a contract for a commercial transaction. After the transaction is over, the client hires a litigator who contacts the former lawyer about why certain actions were taken. The litigator is investigating a possible legal malpractice claim against the lawyer. In this case, the lawyer does not have to comply with the requests, because it is a different matter from the transaction.
An ABA press release is here.
Write a letter to the editor, share a story tip or update, or report an error.
