Feb. 25, 2026 – Although lawyers know that when a client and lawyer part ways, the lawyer has a duty to hand over the client file, perhaps muttering “good luck,” a new American Bar Association (ABA) formal opinion advises that the lawyer may have to say a little more.

Formal Opinion 520, released Jan. 21, recommends 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 interest in the matter in which the lawyer formerly represented the client.”

The information covered by the recommendation must be mission critical “to protect the client’s interests” and “reasonably practicable” to give.

A “legitimate need” for the successor lawyer to ask about includes “information … important to a full understanding of the ongoing legal matter at the time the information is requested.”

ABA formal opinions do not impose mandatory conduct, but they are persuasive authority.

Brief Conversation

The recommended duty arises out of Supreme Court Rule (SCR) 20:1.16(d), which requires “[u]pon termination of representation, a lawyer shall take steps to the extent reasonably practical to protect the client’s interests, such as … surrendering papers and property to which the client is entitled[.]”

Although a good file should be comprehensive, the lawyer’s experience in the matter may contain insights that never got into print – brief client conversations, witness impressions, off-the-record court incidents, negotiations, or strategic decisions.

When the new lawyer contacts the client’s former lawyer to ask about something unstated in the file, the ABA recommends the lawyer take the call and answer the question.

The lawyer’s communication need be no more than a simple conversation – as long as the former client gave informed consent under SCR 20:1.9(c) to release the information.

The lawyer, however, gives only what he or she remembers.

“If the lawyer does not recall the answer to a request,” the ABA advises, “there is no obligation to perform further work, such as reviewing a court file, to refresh the lawyer’s recollection.”

The information requested remains limited to what the lawyer knew during the representation, not anything new that he or she may have learned subsequently.

Before making contact, the client’s new lawyer should determine what needs to be known and tell the lawyer in advance to help “evaluate and understand the request.”

“Lawyers are also not obligated to respond to repetitive or excessively time-consuming requests,” the ABA advised.

The information provided must be for the matter the lawyer represented the client – not a subsequent dispute arising after the matter had been completed.

If the former client is unrepresented, “the lawyer should be careful to explain that the lawyer no longer represents the former client and is not providing further legal representation,” the opinion warns.

Catching Up With Wisconsin

One could consider ABA’s opinion as catching up with Wisconsin disciplinary rulings while providing further reasoning.

As the opinion states, “Wisconsin courts have found a post-termination obligation to respond to a request for information from former clients or successor counsel.”

Two disciplinary rulings held the requirement for producing such information came from the general ethical duty of a lawyer to communicate with a client under SCR 20:1.4(a), the ABA opinion says.

In Disciplinary Proceedings against Winkel, 217 Wis. 2d 339 (1998), the attorney’s failure to respond to the former client’s new attorney “fail[ed] to keep a client reasonably informed of the status of a matter and promptly comply with reasonable requests for information.”

The second case, Disciplinary Proceedings against Baehr, 2002 WI 17, cited the same rule for the lawyer failing to respond to multiple calls when his law license was suspended for 90 days.

Although the ABA believes that the duty comes from Model Rule 1.16(d), “[t]hese cases suggest some obligation to respond to certain requests for information from former clients.”

These decisions may attune Wisconsin lawyers to the ABA’s communication recommendations.

Criminal Defense Attorneys

“In certain areas of practice, … lawyers who terminate a representation are expected to provide non-memorialized information to the client or successor counsel, although not necessarily as a matter of obligation under the rules of professional conduct,” the ABA wrote.

Defense counsel have a duty to respond to former clients or their counsel under the ABA’s Criminal Justice Standards for the Defense Function (4th ed. 2017).

“Appellate defense counsel should seek the cooperation of the client’s trial counsel in the evaluation of potential appellate issues. A client’s trial counsel should provide such assistance as is possible,” according to Standard 4-9.2(a).

The ABA also relied on the State Bar of California Standing Committee on Professional Responsibility and Conduct’s Formal Opinion 1992-127.

In quoting the California opinion’s holding, the ABA reinforced the lawyer’s duty “to assist her former client by providing him or her with all materials generated as a result of the representation,” including materials not reduced to writing to successor counsel.

California’s Analysis

The California opinion’s analysis, not covered in the ABA opinion, provides useful explanation.

Criminal defense counsel asked for the opinion after appellate counsel sought “other information not reduced to writing.”

Starting with the lawyer’s duty to take “reasonable steps to avoid prejudice to the rights of the client,” the California opinion reiterated the required release to the client, as requested, of “client papers and property.”

“Items” of property include all “attorney work product” – even the unwritten parts of the file, the California decision said.

The trial attorney was required, according to the California decision, “to fully and candidly discuss matters relating to the representation of the client with appellate counsel and to respond to the questions of appellate counsel, even if to do so would be to disclose that trial counsel failed to provide effective assistance of counsel.”

When appellate counsel seeks such information, the California decision said, the “situation is qualitatively different from other attorney-client relationships, because the client possesses the Constitutional right to the effective assistance of counsel.”

Agent Communications

Lawyers who were agents to their former clients have similar duties, the ABA opinion describes.

Under the Restatement (Third) of the Law Governing Lawyers, section 33(2)(c), which describes duties after ending representation, the lawyer who formerly served as the client’s agent must “take reasonable steps to convey to the former client any material communication the lawyer receives relating to the matter involved in the representation.”

If the former agent receives correspondence or a phone call, the Restatement rule requires he or she pass it on to the former client, the ABA opinion said from the section’s comment h.

Likewise, the Restatement (Second) of Agency, section 381, comment f, “appears to impose a broader duty,” the ABA opinion concluded.

The Restatement section says, “[u]nless otherwise agreed, an agent is subject to a duty to use reasonable efforts to give his principal information which is relevant to affairs entrusted to him and which, as the agent has notice, the principal would desire to have and which can be communicated without violating a superior duty to a third person.”

“[I]f the agency terminates without fault of the principal,” the ABA quoted the Restatement comment, “the agent is under a duty thereafter to give the principal relevant information received by the agent when acting as such.”

Post-Conviction Counsel

The ABA opinion provides three examples to clarify the recommended duty.

In the first example, post-conviction counsel asks the trial lawyer about strategy decisions to prepare an ineffective assistance of counsel argument.

“The 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.”

The lawyer, however, has no duty “to review written materials before discussing the matter,” “to produce written answers to questions, submit a sworn statement, or agree that the conversation be recorded or transcribed.”

“[P]ost-conviction proceedings challenging the fairness of a criminal trial will build on the record at the trial stage ... and, like an appeal, are a reasonably foreseeable stage of continued litigation,” the ABA noted.

Transactional Examples

In another example, a client engaged a lawyer in the sale of a business, but “[a]fter negotiations began, the client became dissatisfied” and found new counsel.

After reviewing the client file, “successor counsel could not determine why a specific term had been omitted from the most recent draft of the proposed terms of sale, and the client cannot recall any discussion with the lawyer about it.”

“The lawyer must answer successor counsel’s questions about the omission of the term, to the extent that the lawyer is able to do so,” the ABA explained, “because the information requested is important to a full understanding of the status of the ongoing transactional matter and is reasonably practicable for the lawyer to provide the information.”

The answer differs when after completing a transaction, the “former client became dissatisfied with the lawyer’s work.”

In this example, the former client’s litigation counsel calls the transactional lawyer and admits the conversation could “be used to evaluate a potential malpractice action against that lawyer.”

“The initial lawyer is not obligated to answer the questions, because a malpractice action against the lawyer would constitute a different, albeit related, matter from the transaction in which the lawyer provided legal services,” the ABA said.