GPSolo Magazine - June 2004
Dead Sea Scrolls
Everyone dreams of the paperless office. But how do we reconcile our dreams of a paperless office with our fiduciary duties to keep our clients’ files safe and to communicate with clients? There are legions of rules and ethics opinions concerning the necessity of releasing files to clients. There are zillions of cases that consider what type of information should or should not be included in a client’s file. Obviously, all those cases and opinions were referring to paper files because that was the only kind that existed at the time. Yet, this underlying presumption—that a “file” is a hard copy, as opposed to an electronically digitalized product—is so last century.
We are witnessing a litigation revolution with the exposure of e-mail in employment, insurance bad faith, and a legion of other cases. Generally, the development of legal ethics lags decades behind technology. But a couple of recent ethics opinions have considered electronic files and the impact on a lawyer’s ethical duties.
Common sense is the backbone of Wisconsin Ethics Opinion E-00-03, which maintains that if the client requests an electronic version of the file, and if the lawyer maintains that version, then upon request an electronic version ought to be provided to the client, who can be charged only for the cost of the disk.
A visionary Maine ethics opinion (Maine Board of Bar Overseers Professional Ethics Comm’n, Op. 183, 2004) fleshes out the theories sustaining the Model Rules. Several different rules implicate files, but it is upon withdrawal or termination of representation in conjunction with Model Rule 1.16 (D) that file turnover becomes of paramount importance. The purpose of Rule 1.16 (D) is to ensure the transfer of information to the client. That requires a subjective consideration of the client’s status. If you are representing a technologically challenged client, electronic files would not constitute appropriate compliance with ethical obligations of the rule. In terms of disciplinary or legal malpractice liability, the best protection is the client’s consent (at the onset of representation) to receipt of an electronic file.
If you are obtaining consent to maintain an electronic file, this gives you a superb opportunity to evaluate your client’s level of technological knowledge and resources. If you are handling a workplace discrimination claim, and your client shares a facsimile machine with one hundred other employees, that would be good to know before you fax your bottom-line settlement proposal. If your client doesn’t have an e-mail account, the concept of electronic files might be meaningless altogether.
Clients come in all shapes and all sizes. Your client might be averse to cellular or cordless phones. Someone like TV mobster Tony Soprano might be averse to all forms of telephonic communication. It is important to understand a client’s unique circumstances at the beginning of the representation. If your client consents to a particular method of communication, and does so using that method, this confirmation could provide a defense in the state bar grievance or in the civil arena should a problem arise later.
Even if you establish that your client is sufficiently tech-savvy to handle electronic communications, your efforts to facilitate such communications may themselves prove problematic. The Wisconsin opinion considers hardware and software used by the firm—and whether providing that technology to the client violated copyright or other “contractual restrictions.”
Another potential problem of the paperless office is that electronic data degrades faster than paper records. And even if the data has not yet degraded, it may be irretrievable: Many lawyers cannot access electronic files from the early 1990s because they no longer have the necessary software. If an attorney is choosing to go paperless, he or she must maintain the ability to open and access the data—and to communicate it to clients. The Maine ethics opinion advises that the attorney should maintain the appropriate hardware or software program to open and access the information contained in the file.
Digitalized electronic files are an extremely fragile method of communication. Consider how degraded old facsimiles were, when compared to the Dead Sea Scrolls. Those scrolls were meant to last centuries. Can your digital files survive the decade?
Diane L. Karpman, a California ethics expert, represents attorneys before the California State Bar, handles risk management for firms, and is frequently retained as an expert witness in legal malpractice, conflicts of interest, and other related matters. She can be reached at email@example.com.