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Opinion #183. Lawyer's Obligations Concerning the Manner Of Retention of Client and Law Office Records
Issued by the Professional Ethics Commission
Date Issued: January 28, 2004
Question
Is an attorney obligated to keep a paper copy of the attorney?s correspondence, if the attorney retains a copy of the correspondence in a computer or by other means of electronic storage?
Opinion
There is no provision of the Code of Professional Responsibility of the Maine Bar Rules that directly addresses the manner in which an attorney should retain records in connection with the representation of a client. Several provisions of the Code, however, when read together in connection with previous opinions of this Commission, provide the relevant framework for considering this question.
First, an attorney is obligated to ?take reasonable measures to keep the client informed on the status of the client?s affairs.? Rule 3.6(a).
Second, as part of his or her obligation to preserve a client?s property, an attorney must take steps to ?[m]aintain complete records of all . . . properties of a client coming into possession of the lawyer? and ?[d]eliver to the client, as requested by the client, . . . properties in possession of the lawyer which the client is entitled to receive.? Rule 3.6(e)(2)(iii) & (iv). [1]
Third, an attorney withdrawing from representation must ?take reasonable steps to avoid foreseeable prejudice to the rights of his client, including . . . delivering to the client all papers and property to which the client is entitled.? Rule. 3.5(a)(2).
In Opinion #74, we addressed a question posed by a law firm that wished to return ?closed client files on matters for which it is no longer providing services.? The firm asked whether it could return files in the absence of a client?s request for them and whether it could dispose of files of clients who did not take custody of their files. We answered those questions in the affirmative, identifying several principles that also are relevant to the instant inquiry. First, we recognized that the obligation of an attorney to safeguard a client?s property does not cease simply because the representation has ended. Second, we recognized that when a file is returned to a client in the absence of a request, the attorney is obligated to ensure that the client who receives the file is capable of understanding its importance and discerning what is valuable within it. Third, we recognized that an attorney unable to locate a client in order to return a file or obtain consent to its destruction must be careful not to destroy documents that might be valuable or useful in the future.
In Opinion #120, we addressed the question whether an attorney is obligated to undertake the expense of delivering a file to a client?s new counsel. We concluded that an attorney satisfies the obligation to deliver paper and property to a client if the attorney makes the file available for the client to pick up at the attorney?s office.
With these Rules and Opinions in mind, we answer the question posed with a qualified no.
While the specific steps that an attorney may take to discharge the obligation to communicate with clients during the course of representation may vary with the nature of the case and the needs of the client, the Code obligates an attorney to ensure that the client is aware of important correspondence and documents prepared or exchanged by the attorney on the client?s behalf. Similarly, the obligation of an attorney to safeguard, retain, and return property to the client requires that important correspondence and documents created by the attorney on the client?s behalf be retained in a way that insures that the client and the attorney are able to access these records in the future.
Whether an attorney chooses to discharge these duties by providing verbal or written summaries of correspondence, forwarding paper copies of correspondence to the client, providing electronic files, or by some combination of means, the goal of the effort is the same. The means by which the attorney informs the client and retains files must enable the attorney to discharge these duties and must consider the client?s access to technology and comfort with it, as well as the ability of the client to comprehend the nature of the information provided by the attorney.
If an attorney dispenses with the retention of paper files in favor of computerized records, the attorney must be mindful that the obligation to the client may require the attorney to maintain the means to provide copies of those records in a format that will make them accessible to both the attorney and the client in the future. Because the attorney is obligated to ensure that the client is able to make informed decisions regarding the disposition of the file and also must take care in destroying files to be sure that useful information is retained, an attorney will need to consider how new hardware or software will impact future access to old computerized records. Thus, for example, 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. The attorney should consider whether the means by which computerized records are kept and stored might not be sufficiently universal at this time to allow that attorney, who retains only computer records, to discharge these obligations in the future simply by delivering to the client a disc with data stored on it.
Footnote
[1] Our Opinions uniformly have considered "files" maintained by the attorney in the course of representation of the client to be property of the client. See, e.g. Opinion #51 (issued 12/5/84); Opinion #74 (issued 10/1/86); Opinion #120 (issued 12/11/90); Opinion #143 (issued 7/26/94). We have never been asked, however, whether the Code requires that certain categories of documents be maintained as part of the file or whether all records maintained by the attorney as part of the file, including the attorney's notes and internal communications of an administrative nature, are property of the client. We note that this is an area upon which there is a wide divergence of opinion. See, e.g., Brian J. Slovut, Eliminating Conflict at the Termination of the Attorney-Client: A Proposed Standard Governing Property Rights in the Client's File, 76 Minn. L. Rev. 1483, 146 (1992) (discussing the two standards applied by courts and state ethics opinions; one that assigns ownership of the entire file to the client and the other that allows attorneys to retain ownership in their work-product). Because resolution of the instant question does not require that we answer these questions, we will not answer them now.
