[WSBAPT] ethics section

[Eric Nelsen]

>From Washington Legal Ethics Deskbook - Ch. 6.3(4)(b) Law Practice Management (Washington Legal Ethics Deskbook (WSBA) (2020)):

WSBA Advisory Op. 181 (1987; amended 2009) succinctly summarizes the rule on file transition: "At the conclusion of a representation, unless there is an express agreement to the contrary, the file generated in the course of [a] representation, with limited exceptions, must be turned over to the client at the client's request, and if the lawyer wishes to retain copies for the lawyer's use, the copies must be made at the lawyer's expense." The limited exceptions normally include a lawyer's notes relating to the business relationship with the client, such as conflict checks and collection notes, that were not charged to the client and general research memoranda, such as a memo prepared in another matter dealing with the same legal issue, that were not billed to the client. Further, as noted in Advisory Opinion 181, unless the lawyer's fee agreement with the client provides otherwise, the lawyer may not bill the client for the cost of making a copy for the lawyer's retention for record-keeping or loss-avoidance purposes.

Although Advisory Opinion 181 does not address at length the form in which a lawyer's file is maintained, fairly read it suggests that documents maintained in electronic form fall within its scope if not available in corresponding hard copy form. By contrast, routine "metadata" embedded within an electronic copy of a document but not apparent in its hard copy form does not appear to fall within its parameters unless it reflects material attorney-client communications or work product for which the client has a need. See ABA Comm. on Ethics & Prof'l Responsibility, Formal Op. 06-442 (2006) (discussing electronic metadata). Metadata and other law firm information that may be confidential from the client are discussed further in Chapter 7 (Confidentiality) of this deskbook. See also WSBA Advisory Op. 2211 (2011) about files in criminal cases.

Sincerely,

Eric

Eric C. Nelsen
Sayre Law Offices, PLLC
1417 31st Ave South
Seattle WA 98144-3909
206-625-0092
eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>

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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Diane J. Kiepe
Sent: Tuesday, May 16, 2023 11:30 AM
To: 'WSBA Probate & Trust Listserv' <wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] ethics section

Can someone help me with a quick citation to what a client is entitled to in WA when they request their "file"?

Thanks in advance.

Diane J. Kiepe

Diane J. Kiepe
Douglas Eden
717 W. Sprague Ave.
Suite 1500
Spokane, WA  99201
djkiepe at depdslaw.com<mailto:djkiepe at depdslaw.com>
509-455-5300

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