Under American Bar Association Model Rule 1.16(d), when a lawyer withdraws the lawyer is to “surrender … papers and property to which the client is entitled[.]” Neither the ABA model rule nor most state counterparts (including Washington RPC 1.16), however, include a definition of what constitutes “papers and property” in this context.
The ABA noted in Formal Opinion 471 (2015) that states have generally adopted two approaches through state bar ethics opinions in the wake of this ambiguity. Most that have addressed the issue take the “entire file” approach, under which the lawyer must generally provide the client with all materials in the lawyer’s file (whether in paper or electronic form) typically subject to a relatively narrow band of exceptions. A minority, by contrast, take the “end product” approach—with the lawyer only needing to provide the client with the final product generated and not intermediate items like drafts or notes.
In an order posted on the Idaho State Bar website on Sept. 21, the Idaho Supreme Court adopted the “entire file” approach. Because Idaho does not have a state bar ethics committee equivalent to the WSBA Committee on Professional Ethics, the Idaho State Bar does not have a standing mechanism to issue ethics opinions. Therefore, the Idaho State Bar asked the Idaho Supreme Court to address this issue within a disciplinary case involving a dispute over a lawyer’s file under Idaho RPC 1.16(d)—which, like Washington, is patterned on the ABA Model Rule. The Supreme Court did so in an order that redacted the lawyer’s name and focused primarily on the competing “entire file” and “end product” approaches. While it adopted the “entire file” approach, the Supreme Court directed the Idaho State Bar to propose a comment to RPC 1.16 for the court’s consideration essentially codifying this standard, discussing its application to civil and criminal matters, and proposing any exceptions.
In adopting the “entire file” approach, regionally Idaho joins Washington (WSBA Advisory Op. 181 (amended 2009)), Oregon (OSB Formal Op. 2017-192 (2017)), and Alaska (Alaska Bar Ethics Op. 2003-3 (2003)).
Mark Fucile. Mark handles professional responsibility, regulatory and attorney-client privilege matters throughout the Northwest. He has chaired the WSBA Committee on Professional Ethics and is a co-editor of the Bar’s publications “Law of Lawyering in Washington” and the Legal Ethics Deskbook. He can be reached at 503-224-4895 or mark@frllp.com.
