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.

Image result for electronic data destruction

 

 

Deliver the File

For reasons that will become clear next week, I’m re-posting a blog that I posted in January.

Hint: relief might be in sight! More to come next week.  For now, deliver the file!

*****

Last November, I posted The 50 Original Rules.  It’s a post that briefly recaps the history of the conduct rules that apply to lawyers.  Best I can tell, the earliest record of guidelines for attorney conduct in the United States is David Hoffman’s 1836 publication of his Fifty Resolutions in Regard to Professional Deportment.  My post includes each of Hoffman’s 50 resolutions.

181 years later, it’s somewhat fascinating to me how many of Hoffman’s resolutions continue to resonate.  Many are embedded in the current rules and our collective professional conscience.  Given my fascination, I’ve resolved to blog about the continued relevance of Hoffman’s resolutions, taking them one at a time.  To date, I’ve posted:

Today, I’m focusing on Hoffman’s Resolution #30:

  • “30.  After a cause is finally disposed of, and all relation of client and counsel seems to be forever closed, I will not forget that it once existed, and will not be inattentive to his just request that all of his papers may be careful arranged by me, and handed over to him. The execution of such demands, though sometimes troublesome, and inopportunely or too urgently made, still remains a part of my professional duty, for which I shall consider myself already compensated.”

In other words, deliver the file.

Rule 1.16(d) is the modern equivalent of Resolution 30.  The rule requires a lawyer, upon the termination of a representation, to surrender papers & property to which the client is entitled. .

Of course, it’s not always that simple.  To what is a client entitled? In other words, what is “the file”?

Vermont’s rules don’t define “the file.”  In 1991, the VBA’s Professional Responsibility Committee issued Advisory Opinion 91-03.  The Committee declined to “define what property a client is entitled to have.” However, it noted with approval an informal ABA opinion that “determined that an attorney must return: (1) all of the property delivered to the attorney by the attorney’s client, (2) the ‘end product’ of the attorney’s work; and (3) all other material which is useful to the client in fully benefiting from the services of the attorney.”   The VBA opinion tacitly endorsed the ABA’s position that “an attorney need not deliver the attorney’s internal notes generated primarily for the attorney’s benefit in working on the client’s problem.”

In short, the VBA opinion suggests that Vermont is what bar counsel-types refer to as an “end-product” state.

In July 2015, the ABA issued Formal Opinion 471.  In it, the ABA reaffirmed its long-standing position that, at a minimum, a lawyer has a duty to deliver “end product,”  and that “end product” includes:

  • anything provided by the client;
  • legal documents filed with a tribunal – or those completed, ready to be filed, but not yet filed;
  •  executed instruments;
  • court orders;
  • correspondence to or from the lawyer in connection with the representation, including email and other electronic correspondence
    that has been retained;
  • discovery & exhibits, including interrogatories and their answers, deposition
    transcripts, expert witness reports and witness statements, and exhibits;
  • legal opinions issued at the client’s request; and,
  • reports, evaluations, or assessments paid for by the client.

By contrast, the ABA concluded that Rule 1.16(d) does not require a lawyer to provide a client with material like drafts, internal notes & memoranda, and notes of  (!!!) ethics consults.

Again, Vermont’s rules provide no guidance.  So, with that in mind, the Professional Responsibility Board is considering whether to recommend that the Court adopt a rule that defines the file.  I’ve asked the Board to work from a definition that was proposed last year in Massachusetts.

For now, there’s nothing wrong with erring on the safe side and delivering the “entire file” as opposed to “end product.” Indeed, New Hampshire is an “entire file” state.  Or, call me and we can chat about what to include when you deliver “the file.”

What’s most important is to pick an approach.  Rule 1.16(d) is not optional. It very clearly mandates delivery of the file upon termination of the representation.

Time consuming?  Maybe.  On that note, however, Hoffman was wise.  As time-consuming as he recognized file delivery might be, he also recognized that it was part of his professional duty.  It lives on as part of yours.

Deliver the file.

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File Retention: How long?

Yesterday, I urged lawyers to resolve to deliver the file.  The post links to ABA Formal Opinion 471, an opinion that addresses the question “what is the file?”

A Twitter follower noted that natural follow-up to yesterday’s blog is one that addresses file retention.  How long must a lawyer keep a closed file?

It’s a common question.  To paraphrase another Irish guy, it’s not uncommon for me to hear a frustrated lawyer say something like:

  • I can’t believe the files in here.  I can’t close my eyes and make them disappear!  How long? How long must I sing this song? How long? How lonnnnnnnggggg……?

I’ll cut to the chase: I don’t have a good answer for you.  I’ll do my best.  But, I won’t be offended if you finish this post frustrated that you still haven’t found what you’re looking for.

Again, as I stressed yesterday, Rule 1.16(d) makes it clear that the duty to deliver the file kicks in upon the termination of the representation.  Delivering it moots the question of how long to keep it.  Of course, you’d be well-served to keep a copy for yourself, if only to defend against a potential disciplinary complaint or malpractice claim.

Once delivered, the only retention requirement in the rules appears in Rule 1.15(a)(1): records of funds & property must be maintained for 6 years from the termination of a representation.  The file is client property.  Thus, some jurisdictions have interpreted the rule to require lawyers to maintain a record of what happened to client files.  Even if not affirmatively required by the rule, keeping a disposition log is a good idea.

Now the hard part: what about the file that, for whatever reason, isn’t delivered upon the termination of the representation?

That’s a question that we haven’t answered.

Twenty years ago, the VBA’s Professional Responsibility Committee issued advisory opinion 97-08.  Here’s the synopsis:

  • “A lawyer must exercise discretion in determining the necessary length of time for the subsequent retention or disposition of a client’s file. The contents of certain files may indicate the need for a longer retention period than do the contents of files of similar age based on their relevance and materiality to situations which may foreseeably arise. Moreover, in disposing of a client’s files, a lawyer should protect the confidentiality of its contents. If possible, notice may be given the client as to the date of disposition, affording the client the opportunity to take possession of all
    or part of the material in the file.”

The VBA Opinion is consistent with the general consensus that “it depends.”  Three years ago, the Kentucky Bar Association’s Legal Ethics Opinion 15-01,  noted that the prevailing view is that a reasonable period to retain a file is between 5 and 10 years.

I understand that one-size doesn’t fit all and that, with closed client files, “it depends.”  Still, I’d like to provide relief to lawyers who’ve run out of physical & electronic storage space, or who simply can’t afford to maintain it any longer.

As I mentioned yesterday, I’ve asked the Professional Responsibility Board to consider a rule that would define “the file.”  The same rule would authorize lawyers to destroy files after 6 years, subject to certain exceptions.  The rule that the Board is considering is quite similar to this rule that was proposed last year in Massachusetts.

Until then, here are two things that I think are critical:

  1. If you haven’t already done so, build a retention policy into your standard representation agreement; and,
  2. Check with your carrier before destroying or disposing of a closed file.

Aside: real estate lawyers, #2 includes checking with your title insurer.

Finally, and as critical as the two thoughts expressed above, whether you pick a 6, 7, or 10-year retention policy, remember that there are some things that should never be destroyed, or that should be retained beyond your standard retention period.  Some (non-exhaustive) examples:

  • documents provided by the client;
  • anything that it’s reasonable to conclude the client might need;
  • files with original wills, deeds, trust documents, and estate planning documents;
  • criminal files;
  • files with pre-nups,
  • files for clients who had young children when support & custody were finalized;
  • files for which the statute of limitations on malpractice has yet to run;
  • files in which the client was a minor, and will remain a minor beyond the expiration of your file retention period;
  • adoption files;
  • Corporate books & records.

This list goes on.

I don’t want to make this blog too long.  If you have questions about file retention, call me.  If you want me to come meet with you and others at your firm, I will.  Until then, a few closing thoughts:

  • generally, it’s okay to store closed files electronically;
  • when disposing of or destroying files, do so in a manner that competently maintains the confidentiality of the client’s information.

Some other resources:

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Deliver the file.

Last November, I posted The 50 Original Rules.  It’s a post that briefly recaps the history of the conduct rules that apply to lawyers.  Best I can tell, the earliest record of guidelines for attorney conduct in the United States is David Hoffman’s 1836 publication of his Fifty Resolutions in Regard to Professional Deportment.  My post includes each of Hoffman’s 50 resolutions.

181 years later, it’s somewhat fascinating to me how many of Hoffman’s resolutions continue to resonate.  Many are embedded in the current rules and our collective professional conscience.  Given my fascination, I’ve resolved to blog about the continued relevance of Hoffman’s resolutions, taking them one at a time.  To date, I’ve posted:

Today, I’m focusing on Hoffman’s Resolution #30:

  • “30.  After a cause is finally disposed of, and all relation of client and counsel seems to be forever closed, I will not forget that it once existed, and will not be inattentive to his just request that all of his papers may be careful arranged by me, and handed over to him. The execution of such demands, though sometimes troublesome, and inopportunely or too urgently made, still remains a part of my professional duty, for which I shall consider myself already compensated.”

In other words, deliver the file.

Rule 1.16(d) is the modern equivalent of Resolution 30.  The rule requires a lawyer, upon the termination of a representation, to surrender papers & property to which the client is entitled. .

Of course, it’s not always that simple.  To what is a client entitled? In other words, what is “the file”?

Vermont’s rules don’t define “the file.”  In 1991, the VBA’s Professional Responsibility Committee issued Advisory Opinion 91-03.  The Committee declined to “define what property a client is entitled to have.” However, it noted with approval an informal ABA opinion that “determined that an attorney must return: (1) all of the property delivered to the attorney by the attorney’s client, (2) the ‘end product’ of the attorney’s work; and (3) all other material which is useful to the client in fully benefiting from the services of the attorney.”   The VBA opinion tacitly endorsed the ABA’s position that “an attorney need not deliver the attorney’s internal notes generated primarily for the attorney’s benefit in working on the client’s problem.”

In short, the VBA opinion suggests that Vermont is what bar counsel-types refer to as an “end-product” state.

In July 2015, the ABA issued Formal Opinion 471.  In it, the ABA reaffirmed its long-standing position that, at a minimum, a lawyer has a duty to deliver “end product,”  and that “end product” includes:

  • anything provided by the client;
  • legal documents filed with a tribunal – or those completed, ready to be filed, but not yet filed;
  •  executed instruments;
  • court orders;
  • correspondence to or from the lawyer in connection with the representation, including email and other electronic correspondence
    that has been retained;
  • discovery & exhibits, including interrogatories and their answers, deposition
    transcripts, expert witness reports and witness statements, and exhibits;
  • legal opinions issued at the client’s request; and,
  • reports, evaluations, or assessments paid for by the client.

By contrast, the ABA concluded that Rule 1.16(d) does not require a lawyer to provide a client with material like drafts, internal notes & memoranda, and notes of  (!!!) ethics consults.

Again, Vermont’s rules provide no guidance.  So, with that in mind, the Professional Responsibility Board is considering whether to recommend that the Court adopt a rule that defines the file.  I’ve asked the Board to work from a definition that was proposed last year in Massachusetts.

For now, there’s nothing wrong with erring on the safe side and delivering the “entire file” as opposed to “end product.” Indeed, New Hampshire is an “entire file” state.  Or, call me and we can chat about what to include when you deliver “the file.”

What’s most important is to pick an approach.  Rule 1.16(d) is not optional. It very clearly mandates delivery of the file upon termination of the representation.

Time consuming?  Maybe.  On that note, however, Hoffman was wise.  As time-consuming as he recognized file delivery might be, he also recognized that it was part of his professional duty.  It lives on as part of yours.

Deliver the file.

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