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.

 

 

ethics

Conflict of Interest Unrelated Matter Current Clients

On February 8, 2019, the Board of Professional Conduct of the Supreme Court of Ohio issued Board Op. 2019-1, opining that it is a violation of Ohio’s Rules of Professional Conduct for an attorney to represent an adverse party to a current client in an unrelated matter without his current client’s informed consent.  Moreover, the attorney may not withdraw representation from the current client to be able to undertake representation of the party adverse to the current client even where the matters are unrelated.  Additionally, a lawyer may not represent an adverse party of a former client in a new matter without the former client’s informed consent.

The matter about which the Board opined involved an attorney representing employees in Worker’s Compensation cases.  Employers then approached the attorney wanting to hire him to represent the companies.  Some of the lawyer’s current and former clients are employees of the employers.

The Board noted that Prof.Cond.R. 1.7(a)(1)-(2) prohibits a lawyer from representing a client that has a direct adverse interest to another current client.  The Board stated that principles of loyalty and independent judgment are fundamental to the lawyer-client relationship.  Accordingly, neither another client’s interests nor the attorney’s own interests can interfere with that loyalty.

According to the opinion, where one client asserts a claim against another in litigation, their interests are directly adverse.  Further, a lawyer may not represent a party in one proceeding against a client the lawyer represents in another proceeding, even where the matters are wholly unrelated.

The Board explained that where a lawyer considers representing a potentially more lucrative or long-term client, the lawyer’s own personal interest in that relationship would impact the lawyer’s ability to carry out duties owed to the current client.  As an example, the opinion asserts the attorney may be hampered in conducting a competent and thorough cross-examination of the employer’s representative due to the desire to maintain the more lucrative employer as a client.  The potential for compromise is present and prohibits such representation.  This presents a material limitation conflict of interest.

The opinion acknowledges that material limitation conflicts are not per se violative of the Ohio Rules of Professional Conduct.  The lawyer, however, must obtain informed consent from each of the affected clients to do so.  Informed consent requires that the clients be “informed of the material risks and reasonably available alternatives to the proposed course of conduct.”  Prof.Cond.R. 1.0(f).  The waiver must also be confirmed in writing.  The best way to do this is through the client’s signature on a waiver of conflict of interest.

Should a client decline to sign such a waiver or decline to give informed consent, the attorney may not withdraw representation of the current client to undertake representation of the prospective client.  The lawyer is obligated to carry a client’s matter to conclusion.  The Board recognized that Prof.Cond. R. 1.16 may permit an attorney to do just this.  However, citing the “hot potato” doctrine, the Board concluded that courts historically have declined to allow attorneys to withdraw from a less favorable representation to proceed with a more lucrative engagement.  Accordingly, the Board adopted the concept that withdrawing representation of one client to undertake representation of another is ethically inappropriate.

Regarding former clients, the Board recognized that Prof.Cond.R. 1.9 prohibits an attorney from representing a client against a former client in a substantially related matter without the former client’s informed consent.  Applying that rule to Worker’s Compensation cases, the Board explained that an attorney taking on representation of the employer whose former clients may still be employed there may face a situation where the former client has a new Worker’s Compensation claim.  The new Worker’s Compensation claim would be the same or substantially related to the attorney’s representation of the former client.  The possibility exists that confidential information may be used against the former client.  The client, therefore, must give informed consent of the representation confirmed in writing.

Where the former client is no longer an employee, there is no substantial relationship unless a new Worker’s Compensation matter would somehow relate to the former employee’s previous claim.  According to the Board, this type of relationship does not require the former client’s informed consent.

ethics

STUPID TEXTING OR 13TH AMENDMENT VIOLATION? Maybe Both!

In a stunning move, the New Jersey Supreme Court censured an attorney for texting his client about nonpayment of his legal fee.  The attorney, a criminal defense attorney, texted his client that he would not prepare for trial if the legal fees were not paid.  The criminal defendant was charged with sexual assaults of four minors and faced 200 years in prison.  The lawyer had twice requested the trial judge to allow him to withdraw from the case due to his client’s inability to pay.  The lawyer also thought the client was unreasonable in refusing a favorable plea offer from the prosecutor.  The lawyer texted:  “HAVE FUN IN PRISON.”  When the client showed the text to the Judge, the Judge allowed the attorney to withdraw and appointed another attorney for the criminal defendant.

The attorney was charged with engaging in a conflict of interest and conduct prejudicial to the administration of justice.  The conflict of interest occurred because the lawyer placed his own economic interests in getting paid above that of his client in receiving a defense to the charges against him.

This presents a real dilemma for criminal defense counsel.  Often, after taking a case, the client becomes unreasonable and cannot or will not pay the attorney’s legal fees.  In such cases, the attorney has little choice but to request to withdraw from the cases.  The ruling gives no reason as to the Judge’s refusal twice to allow the attorney to withdraw as counsel.

Indeed, in Ohio Rule 1.16, a proper reason for terminating representation is in instances where the client fails to fulfill a financial obligation regarding the attorney’s services.  To required the attorney to remain on the case without getting paid is tantamount to involuntary servitude, a requirement abolished by the 13th Amendment to the U.S. Constitution in 1864.  This is the same reason raised for the not requiring attorneys to provide pro bono services. Pro bono work is strictly voluntary.

Certainly, the attorney’s text was imprudent, brash, inadvisable and, perhaps even rude.  Indeed, such conduct could, arguably, be prejudicial to the administration of justice where, as here, the trial was postponed as a result.  And, of course, it is arguably a violation of the administration of justice for an attorney to fail to prepare for trial.  Troubling, however, is the ruling that a conflict exists where the attorney insists on payment prior to preparing for trial.   Even more troubling is allowing a judge to refuse to release an attorney from representation under such circumstances.  The concern is that criminal defendants everywhere will now refuse plea bargains (not that I am a big fan of many of those either) and refuse to pay counsel relying on their ability to exact sanction against the attorney’s license should the attorney refuse to give services for free. Censure is akin to Ohio’s version of a public reprimand.

The moral of the story from that attorney perspective is not to put such language in texts.  Things in cyberspace stay forever!  But I ask you which is worse:  an attorney who so advises his client and then is released from representation or an attorney who keeps it under his hat, fails to prepare for trial, and renders insufficient services.