Client files: from paper to kilobytes

You are 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. You've thought about transferring these files to an electronic format but you worry that you shouldn't throw away hard copies of old client files. What legal ethics issues should you keep in mind if you decide to make the transfer?

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.

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 1376 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). Check your local rules.

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) (ABA/BNA Lawyers' Manual on Professional Conduct, 21 Current Reports (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.

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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.)

More information on the resources available on the general topic of client file retention is available here.

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