GPSolo Technology & Practice Guide - June 2006

Techno Ethics
Maintaining the Client File While Out and About

Despite advances in technology that increase the mobility of lawyers, the ethical requirements for managing client files have not changed. It is generally accepted that the file belongs to the client and not the lawyer. Lawyers have an obligation to take reasonable steps to safeguard documents in their possession relating to the representation and to account to their clients for the work performed.

Nevertheless, managing client files can take on a whole new meaning for mobile lawyers. The traditional notion of the client file consisting of physical papers and property has given way to electronic files and paperless communications that can be stored in various on- and off-site locations. Instead of a file folder containing correspondence, pleadings, memos, and reports, a good deal of client information today is generated electronically, including through the use of laptops and PDAs. Lawyers must develop a strategy for maintaining client documents and information in a way that is not only secure but is also readily accessible and retrievable over time.

Defining the Client File

Much has been said about the duty to safeguard client documents and the client’s right to the file, but little information exists on exactly what constitutes the client file and what it should contain. Some states’ rules and ethics opinions assume that the file contents consist of written documents and other material. For example, California Rule of Professional Conduct 3-700(D)(1) describes “client papers and property” as including “correspondence, pleadings, deposition transcripts, exhibits, physical evidence, expert’s reports, and other items reasonably necessary to the client’s representation, whether the client has paid for them or not.” However, information comprising the client file is not necessarily limited to its physical contents but depends instead on the lawyer’s obligation to account to the client for the work performed and the duty to avoid prejudicing the client’s interests. The concept of a “client file” is, therefore, not static, and the contents will vary depending on the type of matter and the technology employed in representing the client.

It is generally understood today that client “documents” include electronic data and e-mail communications as well as tangible material. ABA Model Rule 1.0(n), for example, defines “writing” to include an electronic record of a communication or representation and specifically mentions e-mail. See also Restatement Third, The Law Governing Lawyers, § 46, Comment a. Discovery rules and case decisions on electronic discovery also have a bearing on what information a client or former client is entitled to receive.

State ethics opinions are beginning to recognize that the file contents can include computer files and other electronically retrievable information and not just hard copies of client documents and other tangible items. Illinois State Bar Association Ethics Opinion 01-01 (July 2001), for example, concludes that a law firm cannot refuse to download a client’s file materials and deliver the data in disk format if the client is entitled to the material and retrievability can be accomplished without disclosing other clients’ confidential information. The opinion reasons that the term “documents” in the discovery context includes all retrievable information in computer storage. Because Illinois’ discovery rules require that a response to a document production request include “all responsive information in computer storage and printed form,” the client is entitled to receive nothing less.

Recently, New Hampshire reached a similar conclusion in Opinion 2005-06/3 (January 2006), finding that e-mails and other electronic materials relating to a former client’s representation are part of the client file and must be retrieved from a law firm’s computer network and given to a departing lawyer who has requested the file in order to represent the client at a different firm. The New Hampshire Bar Association Ethics Committee concluded that the obligation to turn over the client file does not depend on the burden imposed on the firm in doing so. The increased reliance on electronic communications and records in the practice of law obligates law firms to manage their files in a way that allows the use of computer search functions and other means routinely used for electronic discovery in releasing a file to a client. The opinion cautions that client file information must be retrievable without releasing other information that may belong to another client or that might harm a third person.

The content of a client’s file will vary depending upon the circumstances of the case and the nature of the relationship. The file contents will also depend on the lawyer’s practice and the scope of representation undertaken for a particular client. Several standards have been articulated for determining what documents a lawyer must maintain and turn over to the client. ABA Informal Opinion 1384 (1977) describes a subjective standard that requires that a lawyer retain documents that the “client may reasonably expect will be preserved by the lawyer.” The Restatement §46(3), on the other hand, provides a more objective standard that obligates the lawyer to determine what documents the client or former client will reasonably need. Either way, the obligation to safeguard documents relating to the representation in the lawyer’s possession is considered to be part of the lawyer’s duty to provide competent representation.

A lawyer should ascertain the client’s objectives and what information the client may reasonably expect will be preserved by the lawyer. The lawyer should also determine what information needs to be retained in order to protect the client’s interests. An instantaneous e-mail sent on a BlackBerry while at the airport or at a remote location, for example, may be the kind of communication that should be retrievable as part of the client file. When determining if something should be included in the client file, ask the following question: If another lawyer was required to take over the client’s matter, would the communication be considered an important part of the file? If the answer is yes, then the communication should be included as part of the file.

At the same time, lawyers should exercise discretion in deciding what information belongs in the client file. There is no ethical requirement, for example, for keeping every draft of every document or communication. Consideration should be given in deciding what e-mails should eventually find their way to the client file. E-mail use can sometimes produce a data stream of irrelevant and sometimes thoughtless information. With the increased use of portable e-mail devices, the attention paid to the content of e-mail communications sometimes diminishes while the volume of transmissions increases dramatically.

Finally, the extent to which a client is entitled to receive uncommunicated attorney work product remains an open question. See, e.g., California State Bar Opinion 2001-157. Some ethics opinions conclude that a lawyer may not withhold work product where such material is reasonably necessary to the client’s representation. See Bar Association of San Francisco Opinions 1996-1 and 1990-1.

It is important to consider the lawyer’s needs as well as the client’s in deciding what should go into the client file. A lawyer may wish to have a more complete file for general business reasons; maintaining historical documents or documents of personal or intrinsic value may enhance the client relationship and result in future business. Alternatively, a lawyer might need to maintain certain information in the file to justify legal fees in the event of a fee dispute with the client. A lawyer should also maintain an adequate file to safeguard against malpractice claims. Professional liability carriers frequently cite poor file management, lack of documentation, and inadequate procedures for storing, backing up, and retrieving electronic files as circumstances that increase the odds for malpractice claims—and decrease the odds of successfully defending against them.

Ongoing Obligations

How long lawyers must keep client files and the manner in which client documents may be destroyed have been the subject of a number of ethics opinions and commentary. See, e.g., California State Bar Opinion 2001-157; Wisconsin State Bar Opinion E-98-1 (1998); Bar Association of San Francisco Opinion 1996-1; Los Angeles Bar Association Opinion 475 (1994); and Jorgensen, “File Retention Policies and Requirements,” 61 DEC Bench & Bar 12 (2004). It is best to have a file retention policy that the client agrees with, preferably in advance. Of course, any file retention policy must be adhered to regardless of the technology employed to generate and store documents to which the client is entitled.

A general time period for retaining a client’s file, absent client authorization, does not exist. Although lawyers are not required to maintain the entire client file indefinitely, lawyers are expected to preserve items that are reasonably necessary to the client’s legal representation and to avoid the destruction of items that foreseeably could prejudice the client. Examples include items required to be preserved by law, original documents, and materials that have inherent value to the client. The increased reliance on electronically formatted information has led some state ethics opinions to allow electronic client files to be stored on remote servers under third-party control, provided adequate security precautions are taken. See, e.g., Nevada State Bar Opinion 33 (2006).

Security and Retrieval

The duty to safeguard client documents and file materials includes the obligation to maintain an orderly filing system with the ability to track each client’s documents separately. Reasonable measures should be in place to limit access to authorized lawyers and staff. Remote access to electronic client files by multiple lawyers and office personnel can affect the integrity and security of the file. As in discovery-related matters, it is incumbent upon a law firm to manage its electronic and other files in a way that safeguards the client’s information from other clients and allows for the release of the file to a client or former client without releasing information that belongs to another client or a third party. This requires adequate computer word search functions and other strategies with respect to the tracking, storage, and retrieval of electronic file materials belonging to a particular client.

Advance planning for mobile lawyers is required to make sure that information the client is entitled to receive actually reaches the file and is easily retrievable. Lawyers on the go should have a procedure for making sure that important communications and documents are transferred to the client file either electronically or by hard copy. Handheld devices have storage limitations and are not designed to handle large drafts of documents and other attachments. Operating a BlackBerry or laptop as a stand-alone device can create too great a risk that important information will not reach the client file. Laptops and PDAs should be linked to the lawyer’s desktop or computer network so that e-mail communications and electronic attachments will be promptly stored in a central location. Syncing to the lawyer’s computer system is relatively easy, particularly if the device has wireless capability. Software programs are also available for saving voice mail messages digitally as part of the client file. On the other hand, cell phone text messages are not recommended and are considered less stable and secure.

Although technology makes life easier for lawyers on the go, lawyers still need to make sure that they are keeping their client files current, and that they are maintaining adequate security over the systems involved.

 

Mark L. Tuft is a partner with Cooper, White & Cooper LLP, in San Francisco, where he specializes in representing attorneys and law firms on professional responsibility and liability matters. He is a vice chair of the California State Bar Committee for the Revision of the Rules of Professional Conduct and is an adjunct professor at the University of San Francisco School of Law, where he teaches legal ethics. He is also a co-author of the California Practice Guide on Professional Responsibility. He can be reached at mtuft@cwclaw.com.

 

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