When I compile a former client's file, must I include copies of correspondence between my law partner and opposing counsel, or can I withhold it as attorney work product?

Plain-English summary

The inquiring attorney's law partner represented a client in a family law matter until withdrawing in late 2025. The client, now proceeding pro se, requested a copy of his or her file. The inquiring attorney was compiling the file but was unsure whether the client was entitled to copies of correspondence between the law partner and opposing counsel developed during the representation. The panel concluded that the client is entitled to those copies.

The panel grounded the analysis in Rule 1.16(d), which requires a lawyer, upon termination, to surrender "papers and property to which the client is entitled." Drawing on Opinion 2026-01 and Opinion 92-88, the panel explained that this entitlement includes a copy of the client file but does not extend to the attorney's work product. The dispositive question was therefore whether the correspondence in question is work product.

The panel described the purpose of excluding work product as mirroring the protection given work product in the discovery context, quoting Hickman v. Taylor. It recognized that work product includes filings, memoranda, expert reports, mental impressions, interviews, and correspondence prepared by the attorney, as well as the lawyer's own personal notes unrelated to legal analysis. By contrast, papers the attorney receives from the client, or documents developed or derived from them, are not work product even if the attorney relied on them.

Applying that framework, the panel found that correspondence between the attorney and opposing counsel, while reflecting zealous representation, is not "prepared or obtained because of the prospect of litigation" (citing Cabral v. Arruda) and is not the fruit of the attorney's independent research or investigation. It therefore lacks the traditional indicia of work product and must be included in the client file. The panel added, per Opinions 2010-06 and 96-35, that the attorney may not charge the client for copying the file, and may not seek shipping or delivery costs unless a recognized exception applies (for example, the client lives out of state, is ill, or otherwise cannot retrieve the file, or a preexisting agreement apportions those costs).

In practice

Under this opinion, when a Rhode Island lawyer assembles a client file for a departing or pro se client, correspondence exchanged with opposing counsel during the representation is part of the file the client is entitled to receive, not work product the lawyer may withhold. The panel draws the work-product line at documents prepared because of the prospect of litigation or produced by the attorney's own research and investigation, and confirms the client may not be charged copying costs (or, absent a recognized exception, delivery costs) for the file.

Common questions

Q: Do I have to give a former client copies of my correspondence with opposing counsel?

A: Under this opinion, yes. The panel held that such correspondence, developed during the representation, is part of the client file and is not attorney work product, so it must be surrendered under Rule 1.16(d).

Q: What documents can I withhold as work product?

A: The panel described work product as including filings, memoranda, expert reports, mental impressions, interviews, correspondence prepared by the attorney, and the lawyer's personal notes unrelated to legal analysis, as well as material prepared because of the prospect of litigation or produced by the attorney's independent research.

Q: Can I charge the client for copying or sending the file?

A: No, the panel stated the attorney may not charge for copying the file and may not seek shipping or delivery costs unless a recognized exception applies, such as the client living out of state, being ill, or otherwise being unable to retrieve the file, or a preexisting agreement apportioning those costs.

Background and rules framework

The opinion applies Rule 1.16(d) of the Rhode Island Rules of Professional Conduct, which governs a lawyer's duties on termination, including the duty to surrender papers and property to which the client is entitled. The panel construes that entitlement to reach the client file but not attorney work product, defining the latter by reference to litigation work-product principles. In a footnote, the panel observes that the client should already be aware of the substance of such correspondence under Rule 1.4.

Citations and references

Rules of Professional Conduct:

• MR 1.16 (declining or terminating representation)
• MR 1.4 (communication)
• RI RPC 1.16(d), 1.4

Statutes:

• None cited.

Cases:

• Hickman v. Taylor, 329 U.S. 495 (1946), purpose of protecting attorney work product
• Cabral v. Arruda, 556 A.2d 47 (R.I. 1989), documents prepared because of the prospect of litigation

Other opinions cited:

• RI EAP Op. 2026-01 (client file entitlement and the scope of attorney work product)
• RI EAP Op. 92-88 (entitlement includes the client file but not work product)
• RI EAP Op. 90-19 (expert-witness identities from the attorney's research are work product)
• RI EAP Op. 93-76 (scope of work product)
• RI EAP Op. 93-84 (client-supplied papers and derived documents are not work product)
• RI EAP Op. 2010-06 (no charge for copying the file; limits on delivery-cost recovery)
• RI EAP Op. 96-35 (client not charged for copying the client file)

See also

• RI EAP Op. 2026-01: Not Required to Destroy a Former Client's Files
• RI EAP Op. 90-19: Expert-Witness Identities Are Attorney Work Product
• RI EAP Op. 2010-06: Ethical Responsibilities for a Client's File
• RI EAP Op. 2016-04: Joint Representation, Each Client Entitled to the File
• RI EAP Op. 89-13: Obligation to Forward the Client File to a Second-Opinion Attorney

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP-2026-04.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Rhode Island Supreme Court
Ethics Advisory Panel Op. 2026-04
Issued May 14, 2026

FACTS

The inquiring attorney's law partner represented a client in a family law matter until his or her withdrawal in late 2025. The client is now representing him or herself pro se. Recently, the client has requested a copy of his or her client file. The inquiring attorney is in the process of compiling the file but is unsure whether the client is entitled to copies of correspondence between the inquiring attorney's law partner and opposing counsel developed during the representation.

ISSUE PRESENTED

Is the client entitled to receive copies of correspondence between the inquiring attorney's law partner and opposing counsel developed during the representation?

OPINION

It is the Panel's opinion that the client is entitled to receive copies of correspondence between the inquiring attorney's law partner and opposing counsel developed during the representation.

REASONING

An attorney's duties to his or her client upon termination of a representation are set forth in Rule 1.16(d) of the Rules of Professional Conduct:

(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law.

As the Panel has previously observed, Rule 1.16(d) "provides that upon termination of a representation the attorney 'shall . . . surrender[] papers and property to which the client is entitled . . . .'" Rhode Island Supreme Court Ethics Advisory Panel Op. 2026-01 (emphasis added). This entitlement includes receiving a copy of the client file but does not extend to the "attorney's work product." Rhode Island Supreme Court Ethics Advisory Panel Op. 92-88. Thus, the resolution of this inquiry turns on whether the documents in question constitute attorney work product.

The purpose of excluding attorney work product from the client file mirrors the protections afforded attorney work product in the litigation discovery context—namely, that such measures avoid "'[i]neffeciency, unfairness, and sharp practices . . . in the giving of legal advice and in the preparation of cases for trial.'" Rhode Island Supreme Court Ethics Advisory Panel Op. 90-19 (quoting Hickman v. Taylor, 329 U.S. 495, 511 (1946)). "'Proper preparation of a client's case demands that [the attorney] assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference.'" Id. (quoting Hickman, 329 U.S. at 510). In this vein, the Panel has recognized attorney work product includes "filings, memoranda, expert reports, mental impressions, interviews, and correspondence prepared by the attorney . . . as well as the lawyer's own personal notes that are unrelated to legal analysis such as times records, notes of conversations with the client, and other record keeping documents." Rhode Island Supreme Court Ethics Advisory Panel Op. 2026-01 (citing Rhode Island Supreme Court Ethics Advisory Panel Op. 90-19 and Rhode Island Supreme Court Ethics Advisory Panel Op. 93-76) (internal quotation marks omitted). By contrast, "papers and other records the attorney receives from the client during the representation or any documents developed or derived therefrom [are not considered work product,] however—even if the attorney relied upon them in prosecuting the matter on the client's behalf." Id. (citing Rhode Island Supreme Court Ethics Advisory Panel Op. 93-84).

Here, the documents in question are copies of correspondence between the inquiring attorney's law partner and opposing counsel developed during the representation. While such documents certainly facilitate the conduct of a matter and reflect an attorney's zealous representation of his or her client, they are not "prepared or obtained because of the prospect of litigation" unlike, for example, an attorney's case notes. Cabral v. Arruda, 556 A.2d 47, 49 (R.I. 1989). Nor are they the fruit of the attorney's independent research or investigation. See Rhode Island Supreme Court Ethics Advisory Panel Op. 90-19 (endorsing the inquiring attorney's practice of including expert witness reports in a client file but withholding the expert witnesses' identities because "the experts' identities which resulted from the inquiring attorney's research are his work product and, as such do not constitute 'papers and property with which the client is entitled' within the meaning of Rule 1.16(d)"). Therefore, such documents lack the traditional indicia of "work product" as defined above, such that they should be included in the client file provided to the client. See Rhode Island Supreme Court Ethics Advisory Panel Op. 93-84.

In preparing the client file for transmission to the client, "[t]he inquiring attorney may not charge the client[] for the costs of copying the client[']s file." Rhode Island Supreme Court Ethics Advisory Panel Op. 2010-06 (citing Rhode Island Supreme Court Ethics Advisory Panel Op. 96-35). The inquiring attorney also may not seek the cost of shipping or delivering the client file to the client when a hard copy is requested, unless the "client lives out-of-state, is ill, or is otherwise unable to retrieve the client's file from a lawyer's office" or the parties' preexisting agreement apportions such costs to the client. Id. In the absence of a request for a hard copy of the file, however, the inquiring attorney is free to mitigate transmission costs by such methods as "scanning the file and transmitting it electronically to the client, or copying the file to a disk and mailing the disk to the client." Id.

Footnote 1: Indeed, the client should already be apprised of the substance of such correspondence pursuant to Rule 1.4.