Aug. 12, 2026 – If a former client or successor counsel asks for information that is not in the client file, must the former lawyer respond?
ABA Formal Opinion 520 offers advice as to how to handle requests for information from a former client or successor counsel after the termination of the representation.
Question
If a former client or successor counsel calls asking for information relating to my prior representation of the client, do I have to respond? If I do need to respond, to what extent?
I’ve run into this issue enough times that I figured I may as well ask the experts instead of fumbling my way through every request.
Answer
You are not alone – the ethics hotline regularly hears from lawyers struggling with how to respond to such requests for information.
Of course, a lawyer is not required to respond to every communication from a former client or successor counsel, but there are certain requests that require a response.
The Duty to Protect a Former Client’s Interests
Wisconsin Formal Ethics Opinion EF-16-03 discusses a lawyer’s obligation to surrender a client’s file upon termination of the representation, and a lawyer must surrender to a client a complete copy of their file at the request of a former client or successor counsel. A lawyer cannot charge the client for their file and cannot withhold the file because of unpaid fees.[1] In theory, most, if not all, information pertaining to the representation should be contained in the client file.
SCR 20:1.16(d) requires that upon the termination of a representation, a lawyer “take steps to the extent reasonably practicable to protect a client’s interests.”[2] Responding to certain requests from a former client or successor counsel for information not found in the file or after the file has been surrendered is one such step.[3]
ABA Formal Opinion 520 discusses the kinds of requests for information to which a lawyer must respond, and those requests to which a lawyer does not have an obligation to respond.[4] The opinion considers the obligations of a lawyer if the information is not recorded in the file and concludes:
Ordinarily, such a request will require a response when the requested information was acquired by the lawyer during the course of the representation, is unavailable from other sources, and is important to the client’s interests in the matter in which the lawyer formerly represented the client.
The opinion further states that SCR 20:1.16(d) does not require a lawyer to take steps to acquire information, research, and generate written responses or provide further legal services to the client in response to a request for information.
In support of the proposition that lawyers have a post-representation obligation to respond to certain requests for information, the ABA cited two Wisconsin disciplinary cases.
In the first matter, a lawyer was found to have violated SCR 20:1.4(b)[5] for failing to respond to successor counsel’s request for information that was necessary to conclude the matter.[6]
In the second matter, a lawyer was found to have violated SCR 20:1.4(a)[7] for failing to respond to requests for information from a former client after the lawyer’s license had been suspended.[8]
When a Lawyer Must Respond
The opinion offers several examples of information that may not be memorialized in the client file but might nonetheless be necessary to protect the former client’s interests:
factual information that could have been, and perhaps should have been, memorialized, regarding, for example, an interview with a client or material witness or what happened off the record in court or in settlement negotiations with opposing counsel;
the original lawyer’s strategic or tactical reasons for actions taken in the course of representing the client;
that lawyer’s impression of a witness’s credibility; or
the lawyer’s un-memorialized communications with the client.
In other words, the obligation is a supplement to the obligation to surrender file materials. It applies to material information previously acquired by the lawyer regarding work conducted in the course of the lawyer’s representation of the client.
When a Response Is Not Required
Likewise, the opinion offers examples of information a lawyer would not need to provide to a former client or successor counsel, including information that:
is readily accessible elsewhere;
concerns a matter other than the matter in which the lawyer represented the client;
would necessitate the lawyer doing additional work such as writing a memo or affidavit;
would require the lawyer to provide further legal services, such as providing legal advice to the former client;
a lawyer does not recall and which the recall of would require the lawyer to review materials.
A lawyer, of course, may respond to requests for information even if the lawyer is not obligated to respond – although the lawyer should be sure to clarify their role in such situations so as to avoid re-forming the lawyer-client relationship or creating the impression the lawyer is serving as co-counsel of some kind.
When Consent is Needed
Because a lawyer’s duty of confidentiality to a client continues after the termination of the lawyer-client relationship, the lawyer receiving the request for information from someone other than the former client should confirm that the former client has given consent for the disclosure as required by SCR 20:1.9(c).
Further, the lawyer should be aware of the reason for the request, so the lawyer may properly evaluate and understand the request. For example, if a lawyer receives a request for information relating to strategy, the lawyer should inquire as to whether the question pertains to the matter in which the lawyer represented the client or to a subsequent matter only tangentially related to the matter, such as an eviction based on the terms of a lease originally drafted by the lawyer.
Applying the Opinion: Three Examples
ABA Formal Opinion 520 walks through three hypothetical requests for information and analyzes the requests based on the criteria laid out in the opinion. While too lengthy to include in this article,
they are worth a read. One concerns a request for information about trial strategy to assess a possible ineffective assistance of counsel claim. The second concerns a request for information about a term that was excluded from a draft of a contract. The third concerns a request for information that will be used to assess a malpractice claim.
Not all requests from a former client or successor counsel are created equal. It’s important that lawyers understand which requests they need to respond to so they avoid violating SCR 20:1.16(d).
Endnotes
[1] Wisconsin Formal Ethics Opinion EF-16-03 covers a wide variety of topics related to surrendering a client file, including what constitutes a client file, in what format the file needs to be provided and whether a lawyer can charge the client for a copy of their file.
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[2] SCR 20:1.16(d) states: “Upon termination of representation, a lawyer shall 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 lawyer may retain papers relating to the client to the extent permitted by other law.”
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[3] SCR 20:1.5(b)(3) also requires a lawyer to promptly respond to a client’s request for information regarding concerning fees and expenses.
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[4] ABA Model Rule 1.16(d) is identical to SCR 20:1.16(d).
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[5] SCR 20:1.4 (b) states: “A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”
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[6]
Disciplinary Proceedings against Winkel, 217 Wis. 2d 339 (1998).
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[7] SCR 20:1.4(a) states: “(a) A lawyer shall: (1) Promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in SCR 20:1.0(f), is required by these rules; (2) reasonably consult with the client about the means by which the client's objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests by the client for information; and (5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.”
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[8]
Disciplinary Proceedings against Baehr, 250 Wis. 2d 541 (2002).
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