From Paper to Kilobytes II
By Peter Geraghty
May, 2007
You are a new associate in a medium sized 50 year old law firm that
has accumulated thousands of client files, most of which are closed or dormant.
The cost of storing these files has become prohibitive.
As the new lawyer in the firm whom everyone looks to as being presumptively
up to date with current technology, you've been asked to formulate a firm
policy about what items in the client files can be transferred to an electronic
format, and once the transfer has been made, which items in the files can
be discarded. As you begin to think through this process, you realize that
even if you do make such a transfer, there will still be some items in individual
client files that should not be discarded.
What legal ethics issues should you keep in mind as you formulate
this new firm policy?
The issue of how to manage closed or dormant client files has plagued lawyers
for many years. Law practices that have been in existence over a long period
of time accumulate massive amounts of files that are very expensive to maintain
and store. Numerous bar journal articles and state and local bar association
ethics opinions have addressed client file retention issues. See,
e.g. "File Retention Policies and Requirements" Kenneth L. Jorgensen,
61-DEC Bench & B. Minn. 12 (2004), "Ask ETHICSearch", Peter
Geraghty 12 NO. 2 Prof. Law. 24 (2001) (ethical obligations of lawyers to
safeguard client files in the event of the merger or dissolution of law
firm), "Focus on Professional Responsibility--Ownership of Lawyer's
Files About Client Representations; Who Gets the 'Original'? Who Pays for
Copies?" John W. Allen, 79 Michigan Bar Journal 1062-65 (2000), "Who
Owns the File--The Attorney or the Client?" 7 Law Office Administrator
6-7 (August 1998), "Client Files: Handle with Care," Pamela Phillips
and Merri A. Baldwin, 18 California Lawyer 66-68 (May 1998), "How Long
Should You Retain Client Files?" 83 Illinois Bar Journal 649-50 (1995),
"Ethical Considerations in the Retention of Law Firm Client Files,"
John C. Montana, 1 The ISG Update 5-7 (June 1999).
An excellent article entitled "Records Retention in the Private Legal Environment: Annotated Bibliography and Program Implementation Tools," by Lee R. Nemchek, is available here.
One possible solution to the storage aspect of the client file dilemma
is to convert the paper in these old files into an electronic format. While
this may seem to be a simple solution, some state bar association ethics
opinions have identified legal ethics issues that can arise when a lawyer
decides to convert from paper to kilobytes.
Even if a lawyer decides to store client files electronically, there may
be items in a particular client file - such as original wills, deeds or
other client property - that the client may reasonably expect the lawyer
will preserve in the original. See, ABA
Informal Opinion 1384 Disposition of a lawyer's closed or dormant
files relating to representation of or services to clients (1977). Some
state Rules of Professional Conduct require that certain items in a client's
files must be kept as originals. See, e.g., Rule 3.4(a)(4) of the
Maine
Code of Professional Responsibility and DR 9-102(D)(8) of the New
York Code of Professional Responsibility. See
Also New York State Bar Association Opinion 680 (1996) (referencing
DR 9-102(D)(8) in the context of electronic file retention). In view of
the varied approach to this issue state by state, it is imperative that
you check your local rules of professional conduct.
State bar ethics committees have addressed various aspects of the electronic
file retention question.
Maine
Opinion 183 (2004) addressed the question of whether a lawyer is obligated
to keep paper copies of correspondence generated on the client's behalf
if the lawyer maintains electronic copies on his computer system. While
the opinion concluded that in general a lawyer did not have to keep paper
copies, it stated that the lawyer should consider the client's access to
and understanding of technology when returning an electronic file to a client.
The opinion also cautioned that a lawyer should maintain the software used
to create the files so that the lawyer and the client will be able to open
the files long after the software has become obsolete. The opinion stated:
...it may be necessary for an attorney to retain old versions of software
in order to ensure that computerized records may be accessed or printed
when requested by the client. Similarly, as part of the obligation to deliver
files, an attorney may need to retain the means by which a client may review
or print computerized records. While an attorney may satisfy these ethical
obligations by providing paper copies of computerized records to the client,
electronic file retention is also acceptable provided that the client will
have meaningful access to the electronic file in the future.
State Bar of Virginia Opinion 1818 (2005) stated that a lawyer may maintain
paperless client files, but that he must obtain the client's consent before
destroying a current client's paper documents. The opinion also stated that
before destroying a client's paper file, the lawyer should carefully review
the documents in the file to ensure that paper documents that have legal
significance only in their paper form - such as testamentary documents,
marriage certificates and handwriting samples - are not destroyed. The opinion
also indicated that a lawyer can make maintaining client files in an electronic
format a condition of representation in a retainer agreement with a prospective
client subject to the lawyer's obligation to keep certain documents in their
original form.
Missouri Informal Opinion 20010147 (undated) stated that a lawyer may not
discard the hard copies of client files after scanning them without the
client's consent.
Other opinions state that a lawyer who maintains client files in an electronic
format should provide a client with electronic copies should the client
request it. See,
e.g. Wisconsin State Bar opinion E-00-03 (2003):
...when the client requests documents be provided on a computer disk
which the lawyer has maintained electronically, the lawyer should provide
those documents in the requested format, so long as it is reasonably practicable
to do so.
Accord, North Dakota
Opinion 01-03 (2001). (A client's file that is maintained in an electronic
format should be provided in that same format if requested.)
New
Jersey Supreme Court Advisory Comm. On Professional Ethics Opinion 701
(2006) considered whether client files can be stored on a remote server
maintained by an outside company. The Opinion stated that the firm could
do so so long as the lawyer ensures that the company has safeguards in place
that are compatible with the professional obligations of the lawyer to preserve
client confidentiality. The Opinion stated:
…We do think, however, that when client confidential information
is entrusted in unprotected form, even temporarily, to someone outside the
firm, it must be under a circumstance in which the outside party is aware
of the lawyer's obligation of confidentiality, and is itself obligated,
whether by contract, professional standards, or otherwise, to assist in
preserving it. Lawyers typically use messengers, delivery services, document
warehouses, or other outside vendors, in which physical custody of client
sensitive documents is entrusted to them even though they are not employed
by the firm. The touchstone in using "reasonable care" against
unauthorized disclosure is that: (1) the lawyer has entrusted such documents
to an outside provider under circumstances in which there is an enforceable
obligation to preserve confidentiality and security, and (2) use is made
of available technology to guard against reasonably foreseeable attempts
to infiltrate the data. If the lawyer has come to the prudent professional
judgment he has satisfied both these criteria, then "reasonable care"
will have been exercised.
On the general topic of an outside computer maintenance firm's access to
a law firm's client files, See, ABA
Formal Opinion 95-398 Access of Nonlawyers to a Lawyer's Database (1998).
More information on the resources available on the general topic of client file retention is available here.
Peter Geraghty is director of the ETHICSearch research service provided by the ABA Center for Professional Responsibility. Learn more about ETHICSearch at www.abanet.org/cpr.
