September 30, 2019 Top Story

Lawyers May Impose Conditions on File Destruction

Bar association says protections against future lawsuits are appropriate

By Martha L. Kohlstrand

Although a client always has the right to have copies of its documents destroyed at the end of representation, an attorney may have an equal interest in maintaining a copy. In Ethics Opinion 1164, the New York State Bar Association ruled that lawyers may condition destroying client files on the receipt of specific reasonable protections against future lawsuits, including indemnification.

An attorney may conditionally retain a client's digital data

An attorney may conditionally retain a client's digital data

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Future Lawsuits in Mind

The attorney who sought guidance from the bar association had previously represented a client in an intellectual property matter and had obtained digital data relating to the matter. After the attorney-client relationship had begun, the client decided to obtain different representation and ended the relationship with the first attorney. The first attorney returned the data to the former client, but maintained back-up copies.

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