The federal district court in Seattle recently had to order a lawyer to turn over a client’s file to the former client involved.
Before withdrawing in the face of a disqualification motion, the lawyer had formerly represented the plaintiff in HTP, Inc. v. First Merit Group Holdings, Inc., 2024 WL 4121866 (W.D. Wash. Aug. 6, 2024) (unpublished). Replacement counsel asked the lawyer for the client’s file. The lawyer refused unless subpoenaed and attempted to attach conditions, such as payment for copying costs, to his response. Replacement counsel issued the subpoena but refused to agree to the lawyer’s conditions. The lawyer then objected to the subpoena and refused to produce the file. A motion to compel followed.
The court granted the motion to compel. In doing so, the court noted pointedly that the release of the file was governed by Washington RPC 1.16(d) that addresses assisting a client on withdrawal rather than the federal subpoena rule. The court then cited WSBA Advisory Opinion 181 (rev. 2009) on file transition in holding that unless a lawyer and client agree otherwise, the file belongs to the client—not the lawyer—and the lawyer is obliged to provide the file at the client’s request on withdrawal. The court also noted that under WSBA Advisory Opinion 181, absent other arrangements between the lawyer and the client, if the lawyer wishes to keep a copy, the cost is for the lawyer rather than client.
The court ordered the file to be produced within five judicial days. Presumably, failure to follow the court’s order at that point would expose the lawyer to court-imposed sanctions.
WSBA Advisory Opinion 181 was recently supplemented by Advisory Opinion 202401 (2024). Both are available on the WSBA website and are very practical tools for lawyers in understanding their file obligations under RPC 1.16(d) when withdrawing.
