Over the years we published several articles on client file risk management. In those articles we covered the following considerations on how to properly close, return, and destroy client files:
If you are just now developing a file retention and destruction policy or need to review your file risk management procedures, we recommend that you review the following articles available on Lawyers Mutual’s Website. Go to LMICK.com, click on Resources, click on Subject Index, go to Files, and read these articles:
Even with an effective file risk management policy it is surprising how many unusual questions about them arise. The following are examples of special situations:
The Committee concluded “Nothing in the Rules of Professional Conduct permits or requires a lawyer to provide a client’s file to the client’s former lawyer in the face of the client’s instructions to the contrary, unless an exception to the duty of confidentiality applies.
The City of New York Bar Association Committee on Professional Ethics in Formal Opinion 2015-6, 2015 concluded:
When client files are destroyed in an accident or disaster, an attorney may have an ethical obligation to notify current and former clients. Where the destruction of a client file compromises the lawyer’s ability to provide competent and diligent representation to the client, the lawyer must take reasonable steps to reconstruct the file sufficiently to allow the lawyer to provide such competent and diligent representation or must notify the client if he is unable to do so. The lawyer must also notify the current or former client if an accident or disaster compromises the security of confidential information.
The opinion includes a thorough analysis of this question with helpful guidelines on how to deal with the numerous issues that arise when files are destroyed. It is readily available on the Internet – just Google the citation.
For many years what to do with the files of retired lawyers, deceased lawyers, or lawyers who abandoned their practice was a daunting task because there was so little guidance available. Thanks to the Kentucky Bar Association Taskforce on Closed and Abandoned Practices the Kentucky Bar now has A Guide to Closing a Law Practice. The Guide is available for download on the KBA Website – click on Resources and then on Closed and Abandoned Practices.
This novel ethics question occurred in Maine. The Maine Board of Overseers Professional Ethics Commission styled the question as “whether, and under what circumstances, a law firm may consider donating old, inactive legal files that may have historical significance to a library or educational institution.” (Opinion #213, Confidentiality Restrictions Concerning Old Inactive Client Files Having Potential Historical Significance April 6, 2016.)
The Commission concluded:
Despite the historical significance of the files, the answer to the inquiry is that the attorney’s and the firm’s obligations of confidentiality survive death. The attorney must conduct an examination of the files to ascertain that the information contained is not a “confidence” or “secret” of the client, in which case it may be disclosed. Alternatively, the attorney, based upon all of the information available, must be able to make a reasonably reliable determination that the original client consented to disclosure or that disclosure is authorized under Rule 1.6(a)(ii).
This opinion, in addition to its novel issue, is significant because it illustrates the long reach of a lawyer’s fiduciary duty to protect client confidentiality. It is this duty that makes a lawyer more than just another agent.
The New York State Bar Association Committee on Professional Ethics in Opinion 1070 (10/9/15) provided this useful analysis of the issue:
In a joint representation, there is a presumption that the lawyer will share material information disclosed by one co-client in the matter with the other co-clients. But there are exceptions to this presumption, including where disclosure would violate an obligation to a third party or where the lawyer has promised confidentiality with respect to a disclosure. Normally, a client is entitled to full access to the client file, with narrow exceptions. However, if the co-client requesting the file asks the lawyer not to disclose the request to the co-clients, and the lawyer believes the request for the file is material to the other co-clients, then the lawyer may not comply and should counsel the requesting client that the lawyer may not honor the request unless the lawyer is permitted to disclose it to the co-clients. Keeping the request confidential is inconsistent with the expectation of joint clients that the lawyer will keep all of them informed of material developments in the case and with the lawyer’s duty of loyalty to the other joint clients.
In reviewing this opinion in Hinshaw & Culbertson’s The Lawyers’ Lawyer Newsletter (August 2016, Vol. 21, Issue 4) offered the following risk management advice:
It is critical that law firms include express language in the engagement letter in all joint or multiple client representations explaining how confidential information will be treated as between or among the clients, and explaining the duty to keep all clients informed of material developments in the engagement, pursuant to Rules of Professional Conduct 1.4. Normally, the letter will explain that while all information will be confidential as to third parties, each or all of the clients will be entitled to all confidential information. If a different treatment is intended, it must be clearly expressed. Failing to include the appropriate language leads to the kind of situation addressed in this Opinion. When such a problem arises, precisely because the lawyer has information he should otherwise share but now cannot, an unwaivable conflict of interest exists and the lawyer or firm may have no choice but to withdraw, probably from representing both or all of the clients in the matter, pursuant to RPC 1.16.
(Editor’s Note: The Rules of professional Conduct cited above are consistent with the Kentucky Rules of Professional Conduct.)