The Risk Manager, Summer 2017
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:
- The importance of using letters of engagement and closing letters in informing clients of firm file retention and destruction procedures.
- What documents, paper and electronic, constitute the client file that must be given to the client.
- How long a lawyer should store former client files.
- Screening requirements before disposition of a file for retention of original documents or other documents that cannot be replaced.
- Protecting client confidentiality when disposing of 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:
- KBA Ethics Opinion E-436 Provides Updated Guidance on Retention and Disposal of Closed Client Files: KBA E-436 (5/17/2013) addresses one of the more demanding management requirements of law practice – what to do with closed client files. The opinion includes ethics, policy, and practical advice on this issue.
- The Secret Life of Client Files
- The Amazing Client Electronic File: The 2009 Kentucky Rules of Professional Conduct Bring Electronic Documents in from the Cold
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:
Former Lawyer Requests Return of Former Client’s File:
- A New York lawyer was the successor lawyer for a client who filed a bar complaint against the former lawyer. In transferring the representation to the successor lawyer the former lawyer apparently failed to keep a copy of the file. The former lawyer requested that a copy of the file be returned for defense of the bar complaint. The client refused consent for release of the file.
- The New York State Bar Association Committee on Professional Ethics in Opinion 1094 (5/6/2016) reasoned, “a lawyer may reveal or use confidential information to defend the lawyer against an accusation of wrongful conduct.” This gives a lawyer the right to retain copies of the file to defend against a bar complaint. “Had the former counsel retained a copy of the file, there is no question that he/she would have had the right to access that file for purposes of defending against the ethics complaint….” But Rule 1.6(b)(5) gives a lawyer only the right to retain the client’s file – it does not give a former counsel an independent right to obtain the file after relinquishing it. …. Here, the client has refused consent to allow the former counsel access to the file. The situation thus falls squarely within the definition of ‘confidential information’ in Rule 1.6(a), which includes information that the client “has requested be kept confidential.”
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.
What Ethics Duties Does a Lawyer have if Client Files are Accidently Destroyed?
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.
Dealing With Files of Missing, Retired, and Deceased Lawyers
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.
May a Lawyer Release Old, Inactive Client Files Having Potential Historic Interest?
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.
May a Lawyer Give a Copy of the Case File to One Joint Client who Instructs the Lawyer Not to Inform the Other Joint Clients of the Request?
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.)