ethics

Former Client’s File

On August 2, 2019, the Board of Professional Conduct issued Board Op. 2019-6 on Ethical Obligations to Deliver a Former Client’s File.  The Board stated that the file represents the “papers and property” of the client.  The Board acknowledged that an attorney has no ethical obligation to maintain a client’s file for a minimum period of time after termination of the representation.  The attorney is required to deliver the file to the client upon the client’s request.  The file should be delivered in the same or substantially the same manner as it was maintained or in an accessible format if the file was digitally stored.

The Board opined that, even where the client has left her file with the attorney for a substantial period of time after the representation has concluded, the file still constitutes the client’s property and it must be delivered to the client upon the client’s request.

The papers that must be delivered are set forth in Prof.Cond.R. 1.16(d). It describes client papers as “correspondence, pleadings, deposition transcripts, exhibits, physical evidence, expert reports, and other items reasonably necessary to the client’s representation.”  This is not an all-inclusive list, however.  “[O]ther documents may include materials acquired or prepared for the purpose of representing the client, investigatory documents, and filed or unfiled pleadings and briefs.”

“[I]nternal law firm memoranda, firm communications or other administrative materials related to the representation, documentation concerning personnel assignments and conflict checks, the lawyer’s mental impressions, and drafts of pleadings, briefs, or other filings are not considered client papers or property to which the client is entitled. See Adv. Op. 2010-2, ABA Formal Op. 471 (2015), ABA Formal Op. 1376 (1977).”  “‘[C]lient papers or property’ do not include documents that may violate the duty of confidentiality to other persons, the lawyer’s own assessment of the client, or documents shielded from disclosure under state law or court protective order, e.g. designated as ‘counsel only’ under Crim.R. 16(C).”

Attorneys are entitled to maintain client files in digital format and may store them “in the cloud.”  The attorney is duty-bound to ensure that the digital storage medium is secure and take reasonable measures to protect the confidentiality and security of the client property.

The Board recommends that the attorney provide the file to the client in the format in which it is stored unless the client and attorney agree otherwise.  The client, however, must be able to access the documentation.  An attorney may not charge a client for keeping a copy of the file; however, there is no rule addressing who bears financial responsibility for converting documents to accessible formats.  The Board suggests that the attorney and client reach an agreement about how digital files will be provided to the client if requested in the future and who will bear the cost.  In the absence of agreement, an attorney should comply with a former client’s request to convert digital files to paper.

An attorney has no duty to maintain a client file indefinitely.  A records retention policy can obviate the need to maintain a client file for a significant length of time after representation concludes.  The Rules prescribe no minimum time that the files must be retained.  Where the file is not returned to the client at the termination of representation, the Board prescribes that the attorney maintain the file for sufficient time to protect the client’s interests.  For example, until the applicable statutory limitations period has expired or the files no longer serve a useful purpose to the former client.

To avoid maintaining the client file over time, the Board advocates attorneys to develop a records retention policy and office procedures for delivery of the file to the client once the representation is completed.  The attorney should notify the client of this policy at the outset of representation, preferably in an engagement letter or fee agreement.  Where the attorney’s policy calls for the destruction of the file, the attorney should contact the client to claim the physical file or give advance notice of impending destruction.

Board Opinion 2019-6 mirrors in most respects the Board’s Ohio Ethics Guide Client File Retention it published in 2016.  Importantly, Board Op. 2019-6 makes clear that an attorney has no obligation to maintain a client file.  The Ohio Ethics Guide also states this but notes that other jurisdictions suggest maintaining client files for a duration concurrent with IOLTA requirements (7 years).  Board Op. 2019-6 seems to backtrack from imposing client file retention requirements on Ohio attorneys that are not specifically set forth in the rules.  Rather, the Board emphasizes the importance of a file retention policy and communicating that to the client at the beginning and the end of the representation.

 

 

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