Quandaries & Quagmires: ABA Formal Opinion 520

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Editorial note: For only the second time since this column was founded more than 10 years ago we have a change in our staff of ethics columnists.  We bid farewell (and congratulations) to Jennifer Bovitz upon her appointment as a judge for the 10th Judicial District Court.  And we welcome our newest columnist, Aram Desteian, general counsel at Bassford Remele, a leader in the Minnesota ethics bar.

In January, the ABA Standing Committee on Ethics and Professional Responsibility released Formal Opinion 520, “A Lawyer’s Obligation to Convey Information to a Former Client or Successor Counsel.” (“Opinion 520.”) For those of you who do not spend your days considering the finer points of legal ethics (or as some of my jaded lawyer friends call it, “rule compliance”) some background may be helpful.

Background on ABA formal opinions

The ABA Standing Committee is composed of legal ethics scholars and practitioners. It’s an impressive group, and they issue Formal Opinions on issues that they deem to be important. The Opinions interpret the Model Rules, rather than the state-specific rules that apply to practitioners. While there are differences between the Model Rules and the Minnesota Rules, the OLPR often considers ABA Formal Opinions as persuasive authority on issues of legal ethics. As such, Formal Opinions are a source of guidance for attorneys when confronting an ethics issue.

However, Formal Opinions are not without faults. As a general matter, Formal Opinions often rely on state-specific analysis conducted by state courts and regulatory authorities. We’ll discuss that more below. And while those decisions are appropriate to consider, states often have important differences in the text or interpretation of their own Rules that makes broad application difficult.

In addition, this (over) reliance on state decisions can result in a lack of textual analysis of the applicable rule. While that type of nuanced understanding may not be required for most practitioners simply looking for guidance on a difficult issue, it is a source of relatively common discussion amongst us ethics nerds.

 Opinion 520

Opinion 520 attempts to explain aspects of a lawyer’s duties to former clients following termination or withdrawal, specifically as it relates to providing information regarding the representation. This includes whether a lawyer is obligated to respond to questions from the client or successor counsel after the representation has concluded.

(Click here for a copy of ABA Formal Opinion 520 may be obtained from the ABA website.)

The Opinion notes that the Model Rules do not explicitly impose any obligation on an attorney to communicate with a former client. A lawyer’s duty to communicate with a client, which is governed by Model Rule 1.4, terminates at the end of the attorney-client relationship.

Nonetheless, an attorney’s obligations to a former client do not entirely end just because they’ve been fired (or quit). This concept of trailing duties to a former client is exemplified in Model Rule 1.16(d), which requires lawyers “[u]pon termination of representation” to “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 Opinion recognizes that in most cases, an attorney’s obligations under Rule 1.16(d) to a former client are satisfied once an attorney returns the client file and any unearned fees or costs held in trust. But what if the client or their new counsel reaches out with questions? Is an attorney obligated to respond even if Rule 1.4 no longer applies? Well, under Opinion 520, the answer (as with most things) is … it depends.

A “limited duty” to respond to a former client or successor counsel.

Opinion 520 concludes that lawyers have a “limited duty” to convey information that is not recorded in the client file where it is necessary to protect the client’s interests “in the matter undertaken by the lawyer” and where compliance is “reasonably practicable.” Opinion 520, at 4. This limited duty arises where the information was acquired during the representation of the former client, is not available from other sources, and is important to the former client’s interests in that same matter. Id. If these conditions are met, the former counsel “must convey such information if it is reasonably practicable to do so.” Id.

The Opinion makes clear that the “limited duty” is not all encompassing. First, the duty must be necessary to protect the client’s interests in the same matter, as opposed to a subsequent case. The Opinion further explains that the “necessary to protect the client’s interests” standard includes instances where the requested information would be required for a “full understanding of the ongoing legal matter … .” Id. This would include factual details that are unrecorded in the client file, as well as the strategic or tactical reasoning for actions taken during the representation.

Second, the Opinion explains that the former counsel does not need to provide information that is readily accessible in the client file, or to generate work product. Thus, former counsel is under no obligation to produce a memorandum or other document explaining facts or strategy, or to explain the legal issues in the case to successor counsel. These types of requests would not be “reasonably practicable” and are therefore not within the former counsel’s limited duty.

The Opinion cautions that when communicating with a former client that is pro se, the prior counsel should make clear in responding to requests for information that the lawyer is no longer representing the client and will not provide any legal advice. In addition, requests from successor counsel should be confirmed with the former client and informed consent obtained as required by Rule 1.9(c), which governs confidentiality of former client information.

Shaky rationale and unanswered questions.

To establish the legal basis for this “limited duty,” the Opinion includes citations to “general professional norms,” as well as decisions from Wisconsin and California disciplinary cases. The Opinion reasons that these “authorities” support the Opinion’s pronouncement of this “limited duty” even though there is no text in the Rules explicitly recognizing an obligation to communicate with a former client post-termination. Beyond the lack of textual basis for this limited duty, review of the Wisconsin authority cited reflects that the reasoning in that case is what some Minnesotans would call an “interesting” interpretation of Wisconsin’s Rule 1.4.

In that case, In Disciplinary Proceedings against Winkel, 217 Wis. 2d 339 (1998), the Wisconsin Court found a terminated lawyer violated Wisconsin’s Rule 1.4 for failing to respond to requests from successor counsel shortly after the prior counsel’s termination for “information necessary to conclude the matter.” What’s confusing about this citation is that Opinion 520, and a prior Opinion 481 that addressed a lawyer’s obligation to communicate with a client regarding an error, both make clear that Rule 1.4 cannot impose a post-termination obligation to communicate because an attorney’s obligation under that Rule is extinguished upon the termination of the representation.

Similarly, the Opinion cites a California ethics decision. But that California opinion related to a now superseded Rule and the Opinion fails to explain how that Rule was similar to Model Rule 1.16(d). Thus, the “authorities” cited by the Opinion to overcome the lack of a textual basis for the “limited duty” provide a somewhat shaky foundation. It’s not clear why the ABA Standing Committee would rely on these authorities to establish a relatively uncontroversial continuing obligation to assist a former client under Rule 1.16(d).

Opinion 520’s pronouncement of a “limited duty” to convey information post-termination also raises questions regarding the reasoning applied in Opinion 481. Opinion 481, which was issued in 2018, was important in defining an attorney’s obligation to communicate with a client regarding the lawyer’s material error.

The Standing Committee referenced Opinion 481 in drafting Opinion 520 because Opinion 481 analyzes an attorney’s post-termination obligation to communicate with a former client. Opinion 481 concludes that an attorney has no obligation to communicate with a former client regarding the lawyer’s errors, largely because Rule 1.4 does not impose any duty to communicate to a former client. But Opinion 481 also relies in part on the rationale that Rule 1.16(d) only applies to actions  “that may be taken upon termination of the representation or soon thereafter … ” and cannot therefore impose a perpetual obligation to communicate with a former client regarding a potential error.

So why doesn’t Opinion 520’s pronouncement of a “limited duty” to convey information to a former client alter Opinion 481? The Standing Committee does not address this inconsistency. The Opinion fails to consider whether the “limited duty” announced in Opinion 520 should include an obligation to inform a former client of a material error.

Opinion 520 also does not try to reconcile the Standing Committee’s prior statement in Opinion 481 that Rule 1.16(d) only applies to actions “upon termination or soon thereafter … .” Wouldn’t that necessarily require that the “limited duty” to communicate be limited to requests that occur “upon termination or soon thereafter … ?” Once again, Opinion 520 does not squarely address this issue.

These issues are worth consideration and even debate. However, they do not alter Opinion 520’s fundamental practical takeaway for attorneys: there is a limited duty to respond to a client’s request for information, even after termination or withdrawal, where the information requested falls within the parameters set out in the Opinion.

Concerns regarding the practical application of the “limited duty.”

Opinion 520 provides multiple illustrations to clarify the “limited duty” recognized in the opinion. The first of these illustrations raises practical concerns regarding an attorney’s obligation to assist a former client, even where the former client’s actions may lead to potential liability for the attorney.

Illustration 1 deals with a lawyer that represented a client in a criminal matter at trial. Under this hypothetical, the defendant’s conviction is affirmed on appeal, but the defendant hires post-conviction counsel to explore a potential claim for ineffective assistance of counsel. The post-conviction counsel contacts the initial attorney and asks for the client file, which is promptly provided. After reviewing the file, the post-conviction counsel asks for a brief phone call to ask the original lawyer questions to determine whether an ineffective assistance of counsel claim may have merit. The Opinion then states that: “[t]he lawyer in this situation may not refuse post-conviction counsel’s request for a few minutes of time for a phone call to discuss the strategic decisions made in the case.” Id. at 6.

The Opinion notes that post-conviction proceedings may be civil in nature, which would presumably make it a separate matter, cutting off the initial attorney’s obligation to assist. Nonetheless, the Opinion concludes that the post-conviction proceeding would be “the same matter as the criminal trial and appeal for purposes of Rule 1.16(d) because they are a later state in litigation between the state and an individual regarding whether that individual should be punished for alleged criminal conduct.” Id.

The Opinion’s reasoning strains to find a basis to require the attorney to assist post-conviction counsel under these circumstances. In addition, the Illustration requires the initial attorney to assist in providing information that may help establish a potential claim for malpractice against them. The Opinion does not discuss what impact, if any, that has on the initial lawyer’s obligations.

Practically, it’s not hard to imagine a circumstance where successor counsel of an unhappy former client could reference the lawyer’s “limited duty” to assist successor counsel to collect information for a potential malpractice claim. While Opinion 520 does not require the attorney to assist in establishing such a claim against the attorney (that would be a “different matter”), wily successor counsel could no doubt couch their communication as a request to understand the “strategic choices” made by the lawyer before termination or withdrawal.

In sum, Opinion 520 offers helpful guidance, and disciplinary authorities often follow ABA Opinions, but legitimate questions about some aspects of the opinion suggest that lawyers should also apply their own professional judgment. Nonetheless, attorneys should be aware of and consider the potential risks when dealing with communications from a former client or successor counsel following withdrawal or termination.

Aram Desteian is a shareholder at Bassford Remele in Minneapolis, where his practice focuses on professional liability and legal ethics. He regularly assists lawyers in preventing and navigating lawsuits, investigations, board proceedings, and hearings involving legal malpractice and the law of lawyering. Aram serves as Chair of the Minnesota State Bar Association’s Professionalism and Ethics Section and as Bassford Remele’s General Counsel.