Can a lawyer keep required business records electronically instead of on paper?

Currency note

The official opinion carries a bar-added annotation: "PLEASE NOTE: The recordkeeping requirement in RPC 7.2 was eliminated in April 2009." Treat the opinion's discussion of Rule 7.2 advertising recordkeeping as superseded, and verify current rules before relying on any specific recordkeeping requirement mentioned here.

Plain-English summary

The Committee was asked whether a lawyer may keep electronic copies, instead of paper, of the records the Rules of Professional Conduct require under Rules 1.4, 1.15, and 7.2. It concludes lawyers may maintain electronic copies of these business records, but may not destroy or otherwise alter original client documents.

The opinion describes the recordkeeping duties: Rule 1.4(c) requires keeping records of written malpractice-insurance disclosures for six years, Rule 1.15 requires keeping records of client property and trust funds for six years after the representation, and (at the time) Rule 7.2 required keeping records of advertisements for two years. Except for advertisements, the opinion notes, nothing in the rules dictates the specific form of the records. Reasoning by analogy to Alaska's Uniform Electronic Transactions Act (which provides that an electronic record satisfies a writing or retention requirement and may not be denied legal effect solely because it is electronic), the opinion concludes electronic records are equally acceptable for ethical purposes.

The opinion draws a firm line at original client property. Keeping electronic copies of the lawyer's own business records does not let the lawyer discard "original" records entrusted by the client: Rule 1.15 still requires safeguarding and segregating client property, so scanning client documents does not relieve the lawyer of holding the originals. The opinion also notes the Electronic Transactions Act itself requires certain documents (such as wills, testamentary trusts, and some UCC documents) to be kept in original form. As a practical matter, the opinion encourages keeping records in an unalterable format (for example, scanning to a non-editable file rather than a word-processing copy) and making adequate backups.

In practice

Under this opinion, as the Alaska rules stood at the time, a lawyer may keep the business records required by Rules 1.4 and 1.15 (and, at the time, 7.2) in electronic form rather than paper, but must continue to safeguard and retain in original form any client documents entrusted to the lawyer, such as wills and other instruments the law requires be kept in original form. The opinion encourages an unalterable storage format and backups. Note the bar's own annotation that the Rule 7.2 advertising-recordkeeping requirement discussed in the opinion was eliminated in April 2009.

Common questions

Q: Can a lawyer go paperless for required records?

A: Yes, for the lawyer's business records. The opinion concludes electronic copies of records required under Rules 1.4, 1.15, and 7.2 are acceptable, reasoning by analogy to the Uniform Electronic Transactions Act.

Q: Can the lawyer then throw out the originals?

A: Not original client documents. The opinion says scanning does not relieve the lawyer of the Rule 1.15 duty to safeguard and hold original client property, and some documents (wills, testamentary trusts, certain UCC documents) must be kept in original form.

Q: What storage format does the opinion recommend?

A: The opinion encourages keeping records in an unalterable format, such as scanning to a non-editable file rather than a word-processing copy, and making adequate backups.

Background and rules framework

The opinion interprets Alaska Rules of Professional Conduct 1.4 (communication, including the malpractice-insurance disclosure record), 1.15 (safeguarding client property and trust records, analog of Model Rule 1.15), and (at the time) 7.2 (advertising records). It reasons by analogy to Alaska's Uniform Electronic Transactions Act, AS 09.80.010 to .195.

Citations and references

Rules of Professional Conduct:

• Alaska RPC 1.4(c) (malpractice-insurance disclosure record)
• Alaska RPC 1.15 (client property and trust records)
• Alaska RPC 7.2 (advertising records; requirement eliminated April 2009)

Statutes:

• Alaska Uniform Electronic Transactions Act, AS 09.80.010 to 09.80.195
• Alaska Evidence Rules 1002, 1003, 1004

See also

• AK Bar Ethics Op. 2014-3: Cloud Computing and the Practice of Law
• AL Bar Op. 2010-02: Retention, Storage, and Destruction of Client Files
• CA COPRAC Op. 2007-174: Electronic Versions of the Client File on Termination

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/2008-1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

PLEASE NOTE: The recordkeeping requirement in RPC 7.2 was eliminated in April 2009.

ALASKA BAR ASSOCIATION
ETHICS OPINION NO. 2008-1
MAY LAWYERS MAINTAIN ELECTRONIC COPIES OF BUSINESS RECORDS
IN LIEU OF PAPER COPIES?
QUESTION PRESENTED
The Rules of Professional Conduct require certain records to be kept
under Rules 1.4, 1.15 and 7.2. The Committee has been asked to give an
opinion as to whether it is permissible for a lawyer to maintain electronic
copies of these documents in lieu of paper copies.
CONCLUSION
It is the committee’s opinion that lawyers may maintain electronic copies
of documents, but may not destroy or otherwise alter “original” client
documents.1
DISCUSSION
The Rules of Professional Conduct require lawyers to maintain records of
certain client communications. In this age of electronic communication and
the advancing “paperless office” the question for lawyers is whether the Rules
of Professional Conduct permit electronic recordkeeping.
For example, Rule 1.4(c) requires a lawyer to inform a client in writing if
the lawyer does not have at least minimal malpractice insurance or if the
lawyer’s coverage falls below certain minimums.2 The lawyer must maintain
records of written disclosures for a period of six years from the end of
representation. Similarly, under Rule 1.15 lawyers must maintain records
1 This Opinion is directed to the lawyer’s “business records” rather original documents supplied
to a lawyer by the client. As with all records, lawyers are encouraged to safeguard their records
and keep them in an unalterable form. Thus, scanning of records to a non-alterable file format
rather than maintaining a word processing copy would be preferred. Further, if a lawyer
chooses to keep electronic, rather than paper records, the lawyer is encouraged to make
adequate backups to assure the preservation and integrity of the lawyer’s records.
2 Lawyers must inform clients in writing if they do not maintain malpractice insurance in the
amount of $100,000 per claim and $300,000 in the aggregate.

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relating to client property, including trust funds, for a period of six years
following termination of the representation. Finally, lawyers must maintain
copies of advertisements under rule 7.2. Records must be maintained showing
where and when advertisements were used for a period of two years following
the last dissemination.
In each of the rules just mentioned, a lawyer has an obligation to
maintain the records for a period of time. Except in the case of advertisements,
nothing in the rules or professional conduct dictates the specific form of the
records.3
Historically, courts preferred the “original” of a document to be
introduced for evidentiary purposes to prove its contents.4 However, courts
also recognize that a duplicate or copy may be equally admissible in many
circumstances.5 With updates in technology and the advent of “paperless
offices” scanning technology has in recent years become popular for record
keeping.6
The Alaska legislature has answered many questions relating to
Electronic record-keeping and the admissibility of electronic records in passing
the Uniform Electronic Transactions Act in 2004.7 “If a law requires a record to
be in writing, an electronic record satisfies the law. If a law requires a
signature, an electronic signature satisfies the law.”8 “If a law requires that a
record be retained, the requirement is satisfied by retaining an electronic
record of the information . . . .”9 A record or signature may not be denied legal

3 Here, the rule specifically contemplates that something other than a paper copy may be

maintained, as the advertisement itself may not be in print. Thus, it is specifically permissible
to maintain an electronic or other recording of television or radio advertisements.
4 See Evidence Rule 1002 (“The Best Evidence Rule.”)
5 See Evidence Rules 1003 and 1004.
6 See Moreland, Admitting Scanned Reproductions into Evidence, 18 Rev. Litig. 261 (1999).
7 See AS 09.80.010-195. The act provides that a record retained in electronic form satisfies a
law requiring a person to retain a record for evidentiary, audit, or like purposes, unless a law
enacted after July 1, 2004 specifically prohibits the use of an electronic record for the specified
purpose. AS 09.80.090(f).
8 AS 09.80.040(c) and (d).
9 AS 09.80.090(a).

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effect or enforceability simply because it is in electronic form.”10 Similarly,
“evidence of a record or signature may not be excluded solely because it is in
electronic form.”11 Finally, the statute recognizes that even notarized or
verified documents may be maintained with an electronic signature.12
Consequently, the statute concludes that electronic records are permissible for
evidentiary purposes. The Committee believes that electronic records are
equally acceptable for ethical purposes.
Simply because a lawyer may keep electronic records of his or her own
business records, that does not mean the lawyer is free to discard “original”
records. Rule 1.15 requires the lawyer to safeguard and hold a client’s
property separate from the lawyer’s own property. Thus, for example, if a
lawyer scans client documents for electronic document management, that does
not relieve the lawyer from the obligation to maintain and safeguard the client’s
property. Further, the Uniform Electronic Transactions Act recognizes that
certain types of documents must be maintained in original form. These include
wills, testamentary trusts, and certain documents created under the Uniform
Commercial Code.13
In the Committee’s view, the Alaska Rules of Professional Conduct by
analogy to the Alaska Uniform Electronic Transactions Act permit lawyers to
maintain any records required to be kept pursuant to Rules 1.4, 1.15 and 7.2
in electronic form. The lawyer must still maintain in original form any client
documents entrusted for safekeeping.
Approved by the Alaska Bar Association Ethics Committee on January 3, 2008.
Adopted by the Board of Governors on January 31, 2008.
G:\Ds\COMM\ETHICS\OPINIONS\2008-1.doc

10 AS 09.80.040.
11 AS 09.80.100.
12 AS 09.80.080.

13 AS 09.80.010(b).

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