“ABA Clarifies Lawyers’ Duty to Share Information With Former Clients” —

• “The American Bar Association has issued new guidance clarifying that lawyers may be ethically required to provide former clients with important information related to their representation even when that information is not contained in the client’s official file. The guidance, issued in ABA Formal Opinion 520, addresses lingering questions about lawyers’ post-representation responsibilities under the Model Rules of Professional Conduct.”
• “At the center of the opinion is Model Rule 1.16(d), which requires attorneys to take reasonable steps to protect a client’s interests when representation ends. Traditionally, this has included returning client papers, property, and unearned fees. However, the ABA now makes clear that simply handing over a physical or electronic file may not always be enough.”
  Information Beyond the Client File May Be Required”
• “According to the ABA, lawyers may need to provide former clients or their new attorneys with material information that exists outside the formal client file if that information is reasonably necessary to protect the client’s interests. This can include key factual details, procedural history, or strategic insights that were never documented but are known to the lawyer through experience with the matter.”
  “For example, an attorney who withdraws from a case may possess critical knowledge about upcoming deadlines, settlement discussions, witness credibility, or procedural risks that are not reflected in written records. If withholding that information would disadvantage the client, the lawyer may have an ethical obligation to disclose it.”
• “The opinion emphasizes that the duty is context-specific. Lawyers are not required to recreate entire case histories or provide exhaustive recollections. Instead, the focus is on whether the information is reasonably necessary and practicably available to safeguard the former client’s legal rights.”
• “The ABA also outlines important limits to this obligation. Lawyers are not required to provide information that the former client or successor counsel can easily obtain through other means, such as court dockets or publicly available records. Additionally, attorneys are not expected to conduct new research or generate new materials after the representation has ended.”
• “Confidentiality obligations remain intact. Any information disclosed must comply with applicable ethical rules, including those governing client confidentiality and privilege. The opinion does not authorize attorneys to reveal protected information beyond what is necessary to protect the former client’s interests.”
• “The ABA further notes that lawyers are not obligated to volunteer irrelevant impressions, personal opinions, or speculative assessments. The duty applies only when disclosure is reasonably required to avoid harm to the client during a transition in representation.”
  Clarifying a Longstanding Ethics Gray Area”
• “Legal ethics experts say the opinion provides much-needed clarity on an issue that has long created uncertainty for attorneys. While most lawyers understand their duty to return client files, fewer have been certain about what obligations exist regarding unwritten knowledge or informal information.”

“Potential conflict of interest disqualifies co-conspirators’ counsel” —

• “A federal court has disqualified an attorney from representing two defendants in a drug distribution and firearms trafficking conspiracy because it found a conflict prevented him from providing comprehensive advice to one client where it may be detrimental to another client.”
• “The attorney maintained that both defendants had waived the conflict and had no desire to cooperate with the government. The court said that his disqualification was appropriate to protect the integrity of the judiciary and to avoid the appearance of impropriety.”
• “‘The prudent decision, and the only correct decision is for a lawyer to decline representation of closely related co-conspirators,’ U.S. District Judge Robert S. Ballou held in United States v. McCoy (VLW 026-3-005).”
• “Matthew Felty of Abingdon, the attorney disqualified from representing the defendants in this case, told Virginia Lawyers Weekly that he consulted with the state bar as soon as the conflict was brought to his attention.”
• “‘Both of my clients were adamant that I continue with the representation and signed waivers in open court waiving any conflict,’ Felty said. ‘I complied with all of my ethical obligations to my respective clients and to the court.'”
• “Despite his compliance with ethical rules and his clients’ written waivers after consultation, Felty said the court ‘applied a different, more expansive rule in a case where there was no actual conflict, but only potential, hypothetical or theoretical conflicts.'”
• “‘I am confident that none of those theoretical conflicts would have turned into actual conflicts,’ he said. ‘I respect the court’s decision and have complied with my ethical obligations in ending my representation of both clients.'”
• “When the government advised him of the potential conflict in representing both McCoy and Headen, Felty maintained that both understood the conflict, that they did not want to cooperate in any manner with the government or be adverse to each other and that both wanted Felty as counsel.”
• “The Virginia State Bar later advised Felty that the conflict appeared to be more theoretical than actual, since his clients did not want to cooperate against one another, but said he should inform them he may be conflicted out of both representations if the situation changes.”
  ‘Prudent decision’”
• “Whereas he undertook representation of two closely related co-conspirators charged in separate criminal complaints, Felty owed a duty to each client to advise them regarding their legal jeopardy, their liberty interests and those factors which could affect their potential sentences.”
• “Ballou pointed out that factors which could affect the clients’ sentences included ‘providing substantial assistance in the investigation or prosecution of others for their criminal activity and the acceptance of responsibility if pleading guilty.”
• “‘This duty does not end,’ he continued, ‘upon a client refusing at some point during the representation to cooperate with the government in its investigation or prosecution of others or a client deciding not to acknowledge relevant conduct.'”
• “Under federal sentencing guidelines, ‘a client who accepts responsibility for his criminal activity must truthfully admit the conduct comprising the offense of conviction and additional relevant conduct for which the client is accountable. …”
• “‘A lawyer representing intimately intertwined co-conspirators has a conflict that prevents the lawyer from providing comprehensive advice to one client where it may be detrimental to another client,’ Ballou held.”
• “Therefore, the judge said, a lawyer should decline representation of closely related co-conspirators.”