Under ABA 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.
Effective March 3, 2025, Idaho codified the “entire file” approach with new RPC 1.16A (the new rule is available on the Idaho State Bar website). The new rule effectively supplements Idaho RPC 1.16, which includes the general language quoted above from the corresponding ABA Model Rule. New Idaho RPC 1.16A includes both a broad list of the types of file materials (whether in paper or electronic form) that must generally be provided to a client on withdrawal and a comparatively narrow set of exceptions. The new rule also addresses copying and delivery charges—with lawyers generally able to charge for both.
The unusual history of the new rule is also available on the Idaho State Bar website in the 2024 annual member resolutionsv—Resolution 24-02 in this instance. 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 initially asked the Idaho Supreme Court to address this issue within a disciplinary case involving a dispute over a lawyer’s file. The Supreme Court did so in an order that redacted the lawyer’s name. While it adopted the “entire file” approach in the order, the Supreme Court directed the Idaho State Bar to propose a formal RPC amendment for the court’s consideration essentially codifying that standard. Under Idaho’s rule-making process, this resulted in the annual member resolution noted and, following its approval by the members, the recent codification by the Idaho Supreme Court as Idaho RPC 1.16A.
In adopting the “entire file” approach, regionally Idaho joins Washington (WSBA Advisory Ops. 181 (amended 2009) and 202401), Oregon (OSB Formal Op. 2017-192 (2017)), and Alaska (Alaska Bar Ethics Op. 2003-3 (2003)).
