Must a criminal defense lawyer give a former client a copy of redacted discovery from the file after sentencing, on request?

Plain-English summary

The inquiring lawyer asked whether there is an obligation to provide a copy of redacted discovery to a former client, on request, after sentencing. The committee answered that RPC 1.4, 1.16(d), and 3.4(c) govern, and require the lawyer to comply with CrR 4.7(h)(3) when producing any discovery materials to the former client.

The committee explained that after a representation ends, a lawyer must surrender papers the former client is entitled to, generally including the client's file (citing Advisory Opinions 2117, 1969, and 181). But some papers in the file may be restricted by protective orders or confidentiality obligations that can supersede a former client's demand (Advisory Opinion 181), and in criminal cases the criminal rules may restrict release of certain file materials (Advisory Opinion 2117). The ethics rules recognize that court rules may limit disclosure to a client and require compliance: RPC 1.4 Comment 7 notes that rules or court orders governing litigation may bar disclosing information to the client and that RPC 3.4 directs compliance, and RPC 3.4(c) bars knowingly disobeying an obligation under a tribunal's rules. The committee concluded that the general obligation to produce the former client's file is, for discovery materials, conditioned on the restrictions in CrR 4.7(h)(3), so the lawyer must ensure full compliance with that rule before releasing discovery. On a supplemental question about whether a Freedom of Information Act request changes the analysis, the committee said FOIA issues are beyond the RPC Committee's limited function, but that its opinion governs the attorney's ethical responsibilities regardless of other non-attorney avenues available to the former client.

In practice

Under the Washington rules as they stood at the time of the opinion, the committee tied the file-return duty to the limits court rules impose. The opinion holds that the lawyer must surrender the former client's file under RPC 1.16(d), but that discovery materials within it carry an extra condition: the lawyer must comply with CrR 4.7(h)(3) before releasing them, because RPC 1.4 Comment 7 and RPC 3.4(c) require honoring court-rule restrictions on disclosure to a client. The committee treated the availability of a FOIA route as not changing the attorney's ethical obligations and outside its purview.

Common questions

Q: Does a lawyer have to give a former client copies of discovery after the case ends?

A: The lawyer must surrender the file the former client is entitled to under RPC 1.16(d), but for discovery materials the committee said that obligation is conditioned on first complying with CrR 4.7(h)(3).

Q: Why are discovery materials treated differently from the rest of the file?

A: Because court rules can restrict their release. The committee noted that RPC 1.4 Comment 7 and RPC 3.4(c) require a lawyer to comply with rules or orders limiting disclosure to a client, and that CrR 4.7(h)(3) governs criminal discovery.

Q: Does the former client's ability to make a FOIA request change the lawyer's duty?

A: No. The committee said FOIA issues are beyond its limited function, and that its opinion governs the lawyer's ethical responsibilities regardless of other non-attorney avenues open to the former client.

Background and rules framework

The opinion interpreted Washington RPC 1.16(d) (Model Rule 1.16, surrendering papers and property on termination), RPC 1.4 and its Comment 7 (Model Rule 1.4, communication and withholding information court rules bar disclosing), and RPC 3.4(c) (Model Rule 3.4, not knowingly disobeying a tribunal's rules), applied against the criminal discovery rule CrR 4.7(h)(3).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.16 / Washington RPC 1.16(d) (surrendering the file on termination)
• Model Rule 1.4 / Washington RPC 1.4 and Comment 7 (communication; withholding information per court rules)
• Model Rule 3.4 / Washington RPC 3.4(c) (obeying a tribunal's rules)

Court rules:

• CrR 4.7(h)(3) (restrictions on releasing criminal discovery to a defendant)

Other opinions cited:

• WSBA Advisory Opinions 2117 (2006), 1969 (2002), and 181 (1987) (return of the client file; court-rule and protective-order limits)

See also

• WA Ethics Op. 2194: early plea offers and redacted discovery
• WA Ethics Op. 2160: ownership of electronic client files

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1657

Original opinion text

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

Advisory Opinion: 2211
Year Issued: 2011
RPC(s): RPC 1.4, 1.16(d), 3.4(c), CrR4.7(h)(3)
Subject: Obligation to Provide (redacted) Discovery Materials to Former Client

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.