State Of Washington v. Frank A. Wallmuller

• Court: Court of Appeals of Washington
• Decided: November 24, 2020
• Docket: 53062-7
• Status: Unpublished

Opinion

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FRANK A. WALLMULLER, UNPUBLISHED OPINION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 Wn. App. 2d 851, 854, 424 P.3d 1235 (2018) (quoting RPC 1.16(d)). The

2 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 Wn. App. 2d at 854. The requesting client need not

show any need for the disclosure. Padgett, 4 Wn. 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.

3 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.