When a client asks you not to keep a copy of the file.

File retention and delivery remain among the most asked questions.  I’ve blogged on each:

A quick recap:

  1. Upon the termination of a representation, Rule 1.16(d) requires a lawyer to surrender “papers and property to which the client is entitled.”
  2. The client is entitled to “the file.”
  3. A lawyer may keep a copy of the file.
  4. A lawyer’s malpractice policy might include a provision that requires a lawyer to keep a copy of the file.

Today’s question: what to do if a client directs a lawyer not to keep to a copy of a the file?

I don’t recall ever being asked the question.  A few weeks ago, however, the New York State Bar Association looked at the issue in NYSBA Ethics Opinion 1164.

Here’s the context of the inquiry:

  • Lawyer represented Client in dispute with Former Employer;
  • Client provided Lawyer with digital data related to the dispute;
  • Former Employer alleged that Client had misappropriated propriety information, and that some of it was in the data that Client had provided to Lawyer;
  • Client terminated Lawyer, and hired new counsel;
  • Lawyer forwarded the file, but kept a copy, including back-ups of the digital data;
  • Client and Former Employer settled;
  • the settlement required Client to “retrieve and destroy” all of the digital data;
  • Client asks Lawyer to destroy the digital data.

Lawyer requested an advisory opinion, and asked two questions:

  1. Does Lawyer have an obligation to delete/destroy the digital data provided by the client?
  2. May Lawyer condition destruction upon (a) obtaining a release & indemnification from client; and (b) keeping an inventory of the data?

The NYSBA’s response:

  • A lawyer has a valid interest in keeping a copy of a former client’s file.
  • The general rule is that a lawyer may do even over a former client’s objection.
  • In New York, a lawyer may condition not keeping a copy on the former client providing a release.
  • The lawyer’s interesting in keeping a copy of the file is not unqualified.
  • There may be times when “extraordinary circumstances” exist that favor requiring a lawyer to comply with a former client’s instruction not to keep a copy of the file.
  • A lawyer may condition compliance with a former client’s instruction to destroy copies of the file on obtaining a release and hold-harmless agreement from the former client.
  • A lawyer may condition compliance with a former client’s instruction to destroy copies of the file on creating and keeping an inventory of the material provided to the lawyer by the former client.

The opinion specifically declines to list an “exhaustive catalog” of the “extraordinary circumstances” that will require a lawyer to comply with a former client’s instruction not to keep a copy of the file.  However, it provides some guidance. Factors to consider include:

  • the strength of the former client’s claim to ownership of the information;
  • the sensitivity of the information;
  • the relationship between “sensitivity” and the purpose of the representation;
  • the “legitimacy” of the client’s instruction to destroy;
  • the difficulty associated with complying with the former client’s instruction;
  • the degree to which the lawyer will be subject to liability in the future; and,
  • the availability of feasible alternatives to protect the lawyer in the future.

I have three thoughts.

First, it’s not entirely clear to me how to apply the factors in any given case.  Rather, it strikes me that the opinion might be driven by the fact that dispute focused on the proprietary nature of the very data that Client provided to Lawyer.

Second, while not addressed by the opinion, I’d suggest that a lawyer who asks a former client for a release and hold-harmless agreement should (1) advise the former client, in writing, to seek independent legal advice; and, (2) give the former client a reasonable period of time to do so.  See, V.R.Pr.C. 1.8(h)(2).

Third, it likely makes sense to include your carrier in any decision on whether to destroy copies of information provided by a former client.

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