February means the greeting card aisles of every big-box retailer receive a pink and red makeover, and schoolchildren excitedly choose what valentines and fun-size candy they will exchange with their classmates. While it should go without saying that sending love letters to former clients isn’t exactly best practice this Valentine’s season, you may still need to send something a little less romantic like a formal communication to the client or their new attorney.

The ABA Standing Committee on Ethics and Professional Responsibility just released Formal Opinion 520 concerning a lawyer’s obligation to convey information to a former client or successor counsel. In its Opinion, the ABA examined Model Rule 1.16(d) under which a lawyer may be required to respond to a request for information from former clients or successor counsel under certain limited circumstances. Rule 1.16 states that “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.” This duty arises even if the lawyer has been unfairly discharged by the client.

The ABA concluded that sometimes the protection of client interests requires sharing unrecorded information that was not memorialized in the file materials. So if a former client or successor counsel asks for information that:

• the lawyer learned during the representation
• is unavailable elsewhere, and
• is important to the client’s ongoing matter

the lawyer may be obligated to provide it.

Your duty, however, is limited – much like your local florist’s stock of red roses this time of year. The limitations lie in the provisions of the rule concerning what is necessary to “protect a client’s interests” and that the lawyer’s compliance must be “reasonably practicable.” Lawyers are not obligated to:

• Do new work or perform additional research;
• Create memos, affidavits, or written explanations;
• Respond to repetitive or overly burdensome requests;
• Educate the client on the law; or,
• Provide information for a new matter (e.g. a malpractice claim).

However, your obligation to share information with your former client or successor counsel may be triggered under the rule such that you must provide:

• Recollections about witness interviews;
• Strategic decisions made during the case;
• Off-the-record events;
• Impressions of witness credibility; and,
• Unrecorded communications with the client.

The ABA described the obligation to provide the requested information as a counterpart to the obligation to surrender file materials. In other words, when the request for information demonstrates that unrecorded information is necessary to protect the client’s interest in the matter, you must convey such information if reasonably practicable to do so. Professional courtesy would similarly suggest a brief conversation with the client or their new attorney upon commencement of the representation would be appropriate.

So, when you receive that request from a former client or successor lawyer, don’t ghost them. Instead, provide the information and your insight in support of your former client’s interests and the administration of justice. Of course, be sure to confirm the former client has given consent for such disclosure as required by Rule 1.9(c) if their attorney makes the request. But, your obligation ends there – so this Valentine’s season keep that extra effort (and box of chocolates) for yourself.