Proposed 2026 Formal Ethics Opinion 3       : Providing Client with Editable Electronic Copies of Documents 

Inquiry #1:

Lawyer drafted a will for Client. One year later, Client contacted Lawyer requesting to update Client’s will. Lawyer communicated the fee Lawyer would charge Client to update the will. Client informed Lawyer that he did not want to pay the fee; instead, Client insisted on Lawyer providing an electronic, editable version of the will (e.g., the Microsoft Word file containing the will).

Must Lawyer provide Client with the electronic, editable version of the will?

Opinion #1:

No.

Rule 1.16(d) requires a lawyer to “take steps to the extent reasonably practicable to protect a client’s interests” upon termination of representation. This includes providing “papers and property to which the client is entitled,” such as the client’s file. Id. The comment to Rule 1.16 explains

Generally, anything in the file that would be helpful to successor counsel should be turned over. This includes papers and other things delivered to the discharged lawyer by the client such as original instruments, correspondence, and canceled checks. Copies of all correspondence received and generated by the withdrawing or discharged lawyer should be released as well as legal instruments, pleadings, and briefs submitted by either side or prepared and ready for submission. The lawyer's personal notes and incomplete work product need not be released.

Rule 1.16, comment [10]. The Ethics Committee has previously recognized that “[a] lawyer must exercise his or her legal judgment when deciding what documents or information to retain in a client’s file.” 2002 FEO 5; see also 2013 FEO 15. In 2013 FEO 15, the Ethics Committee concluded that a lawyer may omit from the client file a variety of records, including “items that are associated with a particular client such as backups, voicemail recordings, and text messages unless the items would be helpful to successor counsel.” A lawyer must also exercise professional judgment when deciding whether to preserve the client file in electronic or paper/hard-copy format. See 2013 FEO 15; RPC 234.

Here, the same considerations apply despite there being no successor counsel. Rule 1.16(d) and the various formal ethics opinions issued by the Ethics Committee clearly require Lawyer to provide Client with a copy of Client’s final, executed will. However, under these circumstances, Lawyer is not required to provide all variations of the same document (to wit: Client’s will) in Lawyer’s possession, including any incomplete or unexecuted working drafts of the will. The electronic, editable version of the will is a mixture of the lawyer’s work product, an incomplete version of the will, and a backup of the final, executed will. Were there no other version of the will in Lawyer’s possession, Lawyer would be required to provide Client with a copy of the will (with the exception of any work product or drafting notes on the will); though Lawyer could choose to provide the most recent draft of the will in either paper/hard-copy format or electronic format, including a non-editable version (e.g., a PDF). However, because Lawyer previously provided Client with a copy of the final, executed will, Lawyer is not required to provide Client with the editable, electronic version of the will.

The conclusion drawn in this opinion applies to the situation and circumstances articulated herein, specifically the drafting of a will for a client. A similar conclusion may be drawn in other practice contexts; however, a lawyer will need to exercise legal and professional judgment when deciding whether the electronic, editable version of a document created during representation must be produced. For example, if a client retains a lawyer to draft a template document (e.g., a lease) to be used repeatedly in the client’s business, the editable version of the drafted document is the product for which the lawyer was retained, and a lawyer could not refuse to provide the client with the editable version of that document, although the lawyer may need to take precautions to ensure confidential information is not shared via the document. See Opinion #2.

Inquiry #2:

May Lawyer provide Client with the electronic, editable version of the will?

Opinion #2:

Yes, provided Lawyer ensures the electronic file does not contain any other client’s confidential information.

A lawyer has a duty to keep confidential the information acquired during the representation of a client, as well as a duty to take reasonable measures to protect against the inadvertent disclosure or unauthorized access to confidential information. Rules 1.6(a) and (c). Electronic files, such as Microsoft Word files, often contain embedded, hidden information reflecting the prior use of the file (e.g., metadata relevant to changes made to the document, history of prior versions, etc.); this information may contain privileged or confidential client information. See 2009 FEO 1. The Ethics Committee has previously addressed a lawyer’s professional responsibility when sending electronic files that may contain confidential client information in the file’s metadata, concluding that “a lawyer who sends an electronic communication must take reasonable precautions to prevent the disclosure of confidential information, including information in metadata, to unintended recipients.” Id.

In drafting a will or any number of documents for clients, lawyers often use templates or prior work to serve as a starting point for a current client’s requirements. These templates and previously created documents contain metadata reflecting the prior content of the document unless the metadata is removed, even if the names of the prior client or other client-related information are removed from the text of the document. Until removed, this information—which a lawyer is required to keep confidential pursuant to Rule 1.6—could be accessed by a subsequent recipient of the document, thereby exposing the confidential client information contained in the metadata.

Accordingly, if Lawyer wants to send the editable, electronic file of a document containing Client’s will, Lawyer must take reasonable steps to ensure sending the electronic document will not transmit another client’s confidential information with the document; such steps include, but are not limited to, examining and removing any client-identifying information contained in the file’s metadata or removing prior versions of the document from the file. If Lawyer does not have the resources or capabilities to examine the electronic document’s properties and ensure the file does not contain other client’s confidential information (via metadata, prior versions, etc.), Lawyer may not provide the electronic, editable version of a document to a client.