State Of Washington v. Frank A. Wallmuller

Filed
Washington State
Court of Appeals
Division Two
November 24, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 53062-7-II
Respondent,
v.
FRANK A. WALLMULLER, UNPUBLISHED OPINION
Appellant.
Frank Wallmuller appeals the superior court’s denial of his motion to compel his former
trial counsel to provide him with a copy of his client file. The State concedes, and we accept the
State’s concession. We reverse and remand.
In 2008, the State charged Wallmuller with multiple criminal charges. Eric Valley
represented Wallmuller as appointed counsel. On September 24, 2018, Wallmuller filed a
motion to compel Valley to provide him with a copy of his client file from the criminal case.
According to the motion, Wallmuller had written Valley multiple times requesting the file, but
Valley never responded.
The superior court held a hearing on the motion in October 2018. Valley appeared at the
hearing and argued that the superior court did not have jurisdiction over him. Valley claimed to
be Wallmuller’s attorney of record and filed a notice of intent to withdraw as his counsel then
left the hearing before Wallmuller argued his motion. Wallmuller argued that he was entitled to
No. 53062-7-II
a copy of his client file and discovery materials, subject to nonprejudicial withholdings under
Rules of Professional Conduct (RPC) 1.16(d) and redaction under CrR 4.7(h)(3). The State
appeared and agreed that Wallmuller was entitled to a copy of his case file, subject to appropriate
redactions.
At the conclusion of the hearing, the superior court reserved ruling. The superior court
held a second hearing in January 2019. Valley refused to attend the second hearing. The
superior court stated it would enter an order directing Valley to produce the file if he still had it,
but because the criminal trial ended over seven years prior, and attorneys are required to retain
criminal files for approximately seven years, Wallmuller’s best recourse was likely through the
bar association. But the superior court’s written order did not reflect its oral ruling.
The superior court’s written order acknowledged that the RPCs require an attorney to
provide a requested case file after representation ends, but concluded that Valley had not
represented Wallmuller since the entry of the judgment and sentence in December 2009. The
superior court denied the motion to compel stating that “the Court denies the motion to compel
given the passage of time, but would indicate that this denial does not prohibit Mr. Valley from
sending the file to Mr. Wallmuller if [Valley] still has the file.” Clerk’s Papers at 123.
Wallmuller appeals the superior court’s order denying his motion to compel. Wallmuller
argues that the superior court erred by not ordering Valley to provide him a copy of his client file
under CrR 4.7(h)(3) and RPC 1.16(d). The State concedes, and we accept the State’s concession.
The professional conduct rules require defense counsel to “‘surrender papers and
property to which the client is entitled’” unless retention is “‘permitted by other law.’” State v.
Padgett, 4 Wash. App. 2d 851, 854, 424 P.3d 1235 (2018) (quoting RPC 1.16(d)). The
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No. 53062-7-II
Washington State Bar Association issued an ethics advisory opinion interpreting RPC 1.16(d) to
mean that absent an express agreement to the contrary, the file generated in the course of
representation, with limited exceptions, must be turned over to the client at the client’s request at
the conclusion of representation. WASH. STATE BAR ASS’N RULES OF PROF’L CONDUCT COMM.,
Advisory Op. 181 (1987, amended 2009). CrR 4.7(h)(3) authorizes defense counsel to provide to
the defendant any discovery materials received from the prosecution “after making appropriate
redactions which are approved by the prosecuting authority or order of the court.”
Reading CrR 4.7(h)(3) and RPC 1.16(d) together, an attorney must surrender the client
file when a criminal defendant requests copies of his file, and relevant discovery at the
conclusion of representation. Padgett, 4 Wash. App. 2d at 854. The requesting client need not
show any need for the disclosure. Padgett, 4 Wash. App. 2d at 854.
In this case, the superior court denied Wallmuller’s motion to compel, apparently
assuming that Valley no longer possessed the file. But nothing in the record suggests that Valley
did not possess Wallmuller’s file. And the superior court’s finding that Valley’s representation
of Wallmuller had ended in 2009 with the entry of the judgment and sentence in the underlying
criminal case is at odds with Valley’s contention at the hearing that he continued to represent
Wallmuller.
Neither CrR 4.7(h) nor RPC 1.16(d) place a time limit on a client’s right to a copy of his
file. Under CrR 4.7(h)(3), RPC 1.16(d), and Padgett, Wallmuller is entitled to an appropriately
redacted copy of his client file and any discovery materials retained by Valley.
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No. 53062-7-II
We reverse the superior court’s order denying Wallmuller’s motion to compel production
of his case file, and we remand for the superior court to enter an order compelling Valley to
produce copies of the file in his possession after any appropriate redactions.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
_____________________________
Worswick, J.
_____________________________
Maxa, J.
_____________________________
Lee, C.J.
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