by Fred L. Wilks
Your client chose to hire new counsel before the subject matter of the legal representation was concluded. You dutifully obtained extensions of time from opposing counsel, collected the client files and provided them to new counsel, provided pending deadlines to new counsel, and otherwise shared with new counsel information you reasonably expected they might need to protect the client’s interests. The attorney-client relationship terminated and the parties went their separate ways. Six months later, the client or new counsel calls you to ask questions about your recollections, strategy, and impressions that were never recorded in the file. Do you have an ethical duty to respond?
On January 21, 2026, the American Bar Association Standing Committee on Ethics and Professional Responsibility (the “ABA Committee”) addressed this question in Formal Opinion 520. The ABA Committee concluded that, in some circumstances, the lawyer must respond. It derived this duty from ABA Model Rule 1.16. While the ABA Model Rules may be helpful and persuasive regarding the duties owed by California lawyers, they are not binding on California lawyers, and California’s corresponding rule, California Rule of Professional Conduct (“CRPC”) 1.16, does not perfectly track the ABA Model Rule. Thus, for California lawyers, Formal Opinion 520 raises the question of whether a post-termination duty to share unrecorded information with a former client applies to California lawyers.
ABA FORMAL OPINION 520: THE POST-TERMINATION DUTY TO CONVEY UNRECORDED INFORMATION
ABA Model Rule 1.16(d) requires that: “Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as . . . surrendering papers and property to which the client is entitled . . . .” This duty arises regardless of which party terminates the relationship or the reason for the termination. Formal Opinion 520 further noted, citing a prior ABA Formal Opinion, that where a lawyer represented a client on a matter that was not completed at the time of termination, the client may be entitled to internal law office materials generated “for the lawyer’s own purpose in working on a client’s matter”—i.e., attorney work product.
Formal Opinion 520 concludes that ABA Model Rule 1.16(d) sometimes requires a lawyer to convey to a former client or successor counsel information that was never memorialized and maintained in the client’s file. It reasoned that the rule requires a lawyer, at the time of termination or thereafter, to take steps to protect a client’s interests, and although ABA Model Rule 1.16(d) does not explicitly address unrecorded information, the list of examples it does provide is non-exclusive. Thus, the ABA Committee concluded that when a request makes it evident that unrecorded information is necessary to protect a former client’s interests in the matter, the lawyer must provide it.
The opinion notes several important limitations on that duty. A lawyer is not required to generate further work product for a former client, such as preparing affidavits or memos. Similarly, if a lawyer does not recall the answer to a request, the lawyer is not required to review files to refresh the lawyer’s recollection or perform other research. The requested information also must be reasonably necessary to protect the former client’s interests in the same matter in which the lawyer represented the client; the lawyer need not respond when the requested information will be used in a different matter. For instance, according to the ABA Committee, if the client’s new lawyer acknowledges the inquiry may be used to evaluate a malpractice action against the former lawyer, the former lawyer is not obligated to provide answers because a malpractice action would constitute a different matter.
CALIFORNIA RULE OF PROFESSIONAL CONDUCT 1.16: DECLINING OR TERMINATING REPRESENTATION
The relevant language of CRPC 1.16 is structured differently than the ABA Model Rule. It separates the duties set forth in ABA Model Rule 1.16(d) into two subdivisions and seemingly distinguishes between what a lawyer must do before termination versus after termination. The question is whether the textual divergence means the post-termination duties owed by California lawyers differ in any material respect.
Unlike ABA Model Rule 1.16(d), which requires a lawyer to take reasonable steps to protect the client’s interests upon termination of the representation, CRPC 1.16(d) seemingly establishes that duty as a prerequisite to termination, based on the facts known to the lawyer at that time. It provides that a lawyer “shall not terminate a representation until the lawyer has taken reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client . . . .” CRPC 1.16(d) (emphasis added). Subdivision (d) of the California rule does not expressly address the circumstance where, many months after the termination, a client asks the lawyer questions about unrecorded information no one foresaw, at the time of termination, would be needed later. One could argue that the technical divergence in the language of the two rules does not establish any substantive distinction between them. But the language of the next subdivision in CRPC 1.16 undermines that argument.
Whereas ABA Model Rule 1.16 does not have a subdivision (e), CRPC 1.16(e) provides that “upon termination,” the lawyer “shall release to the client, at the request of the client, all client materials and property.” The prefatory language “upon termination” signals that the obligation to return client materials is triggered at the time of termination and, if not satisfied concurrently with termination, the obligation continues thereafter. Indeed, because subdivision (d) also requires compliance with this duty, it is a duty imposed on a lawyer in anticipation of, at the time of, and after termination. By contrast, the more generalized duty to take reasonable steps to avoid prejudice to a client, as set forth in subdivision (d), is a prerequisite to termination without any corresponding post-termination duty. Thus, the ABA Committee’s reliance on the language of subdivision (d) of ABA Model Rule 1.16, language that differs from California’s rule, does not compel the same conclusion in California.
Moreover, California Rule of Professional Conduct 1.16(e) says nothing about obligations concerning unrecorded information. It expressly defines the “client materials and property” that must be provided after termination to include “correspondence, pleadings, deposition transcripts, experts’ reports and other writings, exhibits, and physical evidence, whether in tangible, electronic or other form, and other items reasonably necessary to the client’s representation . . . .” This document-centric definition does not explicitly address unrecorded recollections, discussions, strategies, impressions, and similar information that may reside only in the lawyer’s mind.
The ABA Model Rule, by contrast, is less specific and does not enumerate specific information a lawyer must provide after termination of the representation. The ABA Model Rule thus leaves room for the conclusion that the steps a lawyer must take post-termination include responding to requests for unrecorded information. That argument is harder to make under California’s rule.
CALIFORNIA STATE BAR ETHICS OPINION: A QUALIFIED ANSWER
Nearly thirty-five years ago, the State Bar of California’s Committee on Professional Responsibility and Conduct (“COPRAC”) addressed the issue of a lawyer’s duty to communicate with former clients, albeit in a limited context. State Bar of California Formal Opinion 1992-127 addressed whether a criminal defense attorney, having been relieved by successor counsel, must cooperate with new counsel.
As a starting point, the opinion affirmed the “entire file” approach to file release obligations. Applying former CRPC 3-700 (the predecessor to CRPC 1.16), Opinion 1992-127 states that a lawyer must provide all “items reasonably necessary to the client’s representation,” which may include attorney work product.
In the opinion, COPRAC concluded that “[w]here these items have not been reduced to writing, the attorney’s obligation to the client remains to ‘avoid prejudice to the rights of the client.’” The opinion reached this conclusion, in part, by concluding that a lawyer’s impressions, conclusions, opinions, and legal theories not reduced to writing—i.e., recollections in the lawyer’s head—constitute unrecorded “items” within the meaning of CRPC 3-700. That interpretation of the rule seems dubious in light of the document-centric definition of “client materials and property.” The opinion also expressed the view that a lawyer’s “fiduciary duty to the former client requires the attorney to protect the interests of the client and make appropriate disclosure.” For that proposition, however, the opinion cited no authority establishing any fiduciary duty a lawyer owes to communicate with or assist former clients.
While the reasoning discussed above may not be entirely satisfying, the opinion also appeared to rest on the principle that a criminal defendant, the client in the scenario presented, has a constitutional right to the effective assistance of counsel, citing Powell v. Alabama, 287 U.S. 45 (1932). The opinion acknowledged this situation is “qualitatively different from other attorney-client relations,” and highlighted that its conclusion was limited to a criminal case where appellate counsel is seeking information in the possession of trial counsel. Thus, the scope of Opinion 1992-127 is limited. The opinion does not completely answer the question whether a lawyer, outside the criminal defense context, owes a duty to convey unrecorded recollections to former clients.
Pending further guidance from the courts or the California State Bar, a lawyer’s post-termination ethical duty to provide a former client with unrecorded discussions, strategies, impressions, and similar information remains a gray area in California.
PRACTICAL GUIDANCE
Based on the ethics opinions and rules discussed above, the following practical observations emerge for California lawyers.
In criminal matters, where constitutional concerns are in play, the path is fairly clear. Criminal defense lawyers should provide unrecorded information to successor or appellate counsel when necessary to protect the client from prejudice in the same matter. Such cooperation should be treated as an ethical obligation, not merely a professional courtesy.
In civil litigation and transactional matters, the safest approach is to respond to inquiries from a former client or successor counsel as a matter of professional courtesy. In fact, if the inquiry concerns the same matter that was the subject of the prior representation, it may well be in the lawyer’s self-interest to share information. Filling any gaps in knowledge or correcting misunderstandings may avoid a disappointing result for the former client, and could avoid subsequent claims that the lawyer breached professional duties during the course of the representation.
Meanwhile, such sharing of information requires a lawyer to remain mindful of several considerations. First, the duty of confidentiality survives termination of the representation. See Dietz v. Meisenheimer & Herron, 177 Cal. App. 4th 771, 786 (2009). Thus, a lawyer should obtain client consent before sharing information with successor counsel. One can imagine a circumstance where the client does not want the former lawyer to share certain information with new counsel.
Second, any duty to share information is limited to the lawyer’s recollections. This is a substantial practical limitation on any post-termination duty to share information. There is no duty to review files or conduct research. Thus, when sharing information, a lawyer should be careful to share only what can be faithfully recalled, or at a minimum be explicit about the lawyer’s degree of certainty. Communicating incomplete or inaccurate information may do more harm than good.
Third, the statute of limitations applicable to actions against a lawyer may be tolled until the representation is terminated. See Cal. Code Civ. Proc. § 340.6(a)(2). Where a lawyer is concerned about potential claims the former client might assert against the lawyer, the lawyer should be explicit about the information being shared: recollections of past events and strategies versus legal advice in the ongoing matter. Providing what could be construed as legal advice could open the door to arguments that the lawyer’s representation of the client continued, thus further tolling the statute of limitations.
Finally, any post-termination duty to share information is limited to information necessary to avoid prejudice to the client in the same matter that was the subject of the representation. Thus, it would behoove a lawyer presented with post-termination inquiries to ask why the requested information is needed. Depending on the nature of the inquiry, it may be appropriate to ask whether successor counsel is evaluating a potential legal malpractice claim against the lawyer. Successor counsel may not mislead the lawyer, and the lawyer need not assist a former client in evaluating claims against the lawyer. As the ABA Committee opined, a legal malpractice claim by the former client against the former lawyer would be considered a new matter.
Fred L. Wilks is a business litigation partner at Hodel Wilks LLP in Irvine, California, and can be reached at fwilks@hodelwilks.com.
The views expressed herein are the authors’ own.
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