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The format of documents doesn’t change a lawyer’s duty to release them to a client
Posted Sep 1, 2008 8:00 AM CDT
By Kathryn A. Thompson
Lawyers who convert documents in client files from paper to electronic form may overlook important ethics considerations in their efforts to streamline records management.
There are undeniable benefits to electronic storage of client files, including less space, easier organization and quicker access to the contents.
Generally, the ethics rules that apply to the storage of client records don’t distinguish between formats. The key issue, according to a number of ethics opinions issued at the state level in recent years, is whether the means of storing files compromises the lawyer’s obligation to protect the client’s interests and property.
As a practical matter, most jurisdictions allow lawyers to retain active or closed client files solely in electronic form as long as appropriate safeguards are taken to protect them. But paper documents still must be preserved where required by statute or court rule, if the hard copy document was provided by or belongs to the client, or when destruction of the paper version would adversely affect the client’s interests.
In the ABA Model Rules of Professional Conduct, for instance, Rule 1.1 (Competence) requires a lawyer to provide clients with information or documents sufficient to ensure competent representation, and Rule 1.4 (Communication) sets forth a corresponding duty to keep clients adequately informed about their representation.
Model Rule 1.15 (Safekeeping Property) imposes additional obligations of safekeeping, accounting and delivery on a lawyer when he or she receives funds or property in which a third person, including a client, has an interest. And Rule 1.16 (Declining or Terminating Representation) addresses the steps a lawyer must take at the end of the representation to protect a client’s interests, including returning client property.
But the Model Rules do not address what constitutes client property, deferring instead to decisions and opinions issued by the states, most of which base their professional conduct codes for lawyers on the Model Rules.
Courts have generally adopted two approaches for determining who “owns” the materials in a client’s file. Most jurisdictions hold that the client owns the entire file, including the attorney’s work product, subject to limited exceptions.
The minority view distinguishes between “end product” and “work product.” End product belongs to the client and includes items such as pleadings; correspondence; and the final versions of contracts, wills and other legal documents prepared for the client’s use. Work product, according to the minority view, belongs to the lawyer and includes all preliminary documents, such as internal legal memoranda, and preliminary drafts of pleadings and legal instruments.
The approach adopted within a given jurisdiction may be relevant in determining whether a lawyer is entitled to convert certain documents in a client’s file to an electronic format and then destroy the original paper documents.
THINK BEFORE THROWING AWAY
Recent ethics opinions caution against converting a document to electronic form and then discarding or destroying the original. (The issue generally arises when clients request their files in conjunction with terminating the lawyer’s representation.)
An opinion issued by the State Bar of Arizona’s Committee on the Rules of Professional Conduct concludes that the electronic version of a file is not equivalent to the original and advises that a lawyer who creates electronic versions of paper documents must obtain client consent before destroying any hard-copy originals that belonged to or were obtained from the client. Arizona Ethics Opinion 07-02 (2007). The Arizona opinion also advises lawyers who digitize documents to retain the original paper versions where the absence of the hard copy might prejudice the interests of the client.
The Professional Ethics Committee of the Florida Bar reached a similar conclusion in its Opinion 06-1. The opinion says that the lawyer’s primary consideration should be that the appropriate documents are maintained to protect the client’s interests, not the method by which they are stored.
In conjunction with their ethical duties to safeguard and retain client property, lawyers must ensure that documents stored electronically cannot be inadvertently modified, destroyed or altered. In a 1996 opinion, the Committee on Professional Ethics of the New York State Bar Association instructs lawyers to use an electronic storage technique that is at least as safe as the storage methods used for traditional paper files, and that is capable of reproducing accurate, unaltered copies upon request. New York State Ethics Opinion 680 (PDF)
THE MATTER OF ACCESS
Another issue lawyers must consider before digitizing files is how accessible the files will be to clients in that format.
The Arizona opinion states that a client is entitled to “meaningful access” to files. “A lawyer who has chosen to store his or her client files digitally cannot simply hand a disk or other storage medium to a client without confirming that the client is able to read the digitized images,” states the opinion. If a client or former client needs paper copies, then they may have to be provided—at the expense of the lawyer who has chosen to digitize the files, the opinion notes.
State ethics opinions appear to agree that lawyers who maintain client files in electronic form have a duty to provide clients with electronic copies if requested. But there is less agreement about the extent of the obligation when responding to a client’s request will impose time and expense burdens on the lawyer.
“If a client requests a copy of her file, the firm has an obligation to provide all files pertinent to representation of that client, regardless of the burden that it might impose upon the firm to do so,” states Opinion 2005-06/3 (PDF), issued by the Ethics Committee of the New Hampshire Bar Association in 2006. The opinion addresses whether a firm must sift through e-mails of a lawyer who left the firm to find messages relating to a client’s case. “The mere existence of a paper file does not necessarily allow a firm to automatically exclude from the client’s file electronic communications and other computer-based writings,” states the opinion.
Opinions issued in Wisconsin and California, however, acknowledge the potential burdens that a client’s request may create for the lawyer.
Documents that have been maintained electronically should be provided to the client on a computer disk “so long as it is reasonably practicable to do so,” states the Professional Ethics Committee of the State Bar of Wisconsin in its Opinion E-00-03 (2000). But some requests may require an attorney or support staff to spend extensive time responding in light of the scope of the request, the age of files or other storage issues, or when questions of confidentiality involving other clients arise. In those instances, the opinion states, “a lawyer may charge a client for staff and professional time necessarily incurred to search databases to identify files that contain documents that may fall within the client’s request.”
The State Bar of California’s Standing Committee on Professional Responsibility and Conduct reached a similar conclusion in its Ethics Opinion 2007-174 (2007) (PDF), which states that an attorney’s obligation to release documents in electronic form does not mean the attorney must release them “in any application other than the application in which the attorney possesses them. That is because the attorney’s obligation is to release items, not to create them or to change the application.”
(The opinion also states that lawyers must take “reasonable steps” to strip metadata—material embedded in the document that can be accessed using certain computer techniques—from e-mail to protect the confidentiality of other clients.)
Examining the issue from the opposite side, the North Carolina State Bar concluded in its Formal Ethics Opinion 5 (2002) that a lawyer is not obligated to provide paper copies of e-mail messages at the request of a client. In light of the widespread availability of computers, it is sufficient to deliver a computer disk to the client or to send the documents in some other electronic format.
Many of the conflicts arising from the maintenance and disposition of computerized client files can be avoided with adequate planning. Communication with clients is a key to avoiding trouble later on. Lawyers should make it a practice to consult with clients before converting file documents to electronic formats and discarding the original paper versions.
The State Bar of Arizona’s Committee on the Rules of Professional Conduct advises in its opinion that lawyers obtain consent from clients before converting files to electronic form and discarding the originals.
As an alternative, the committee states, the lawyer may simply return documents to the client after digitizing them.
But the best way for lawyers to avoid trouble down the road is to develop a general policy on document retention and destruction that can be incorporated into their standard retainer or fee agreements.