Can a lawyer give the opposing party copies of draft documents from a former client's file, and how long must a lawyer keep closed client files?

Plain-English summary

The Committee addressed two questions arising from a transaction in which Attorney A had represented the seller of a business and kept draft agreements but not the final executed contract; the buyer, now claiming breach and intending to sue, asked Attorney A for a copy of the contract. The questions were whether the attorney could give the buyer copies of the draft documents, and how long closed client files must be kept.

On the first question, the opinion concluded that the attorney may not provide the opposing party with draft documents prepared in the course of the representation without the client's or ex-client's express consent. It applied DR 4-101, which obligates a lawyer to preserve a client's confidences and secrets, an obligation broader than the evidentiary attorney-client privilege and work-product doctrine and not limited by the source of the information (citing Alaska Evidence Rule 503, Upjohn Co. v. United States, and Hickman v. Taylor). DR 4-101(B) bars revealing or using a client's confidence or secret without consent after full disclosure. The opinion noted the then-pending Model Rule 1.6 would broaden the duty to information relating to the representation regardless of when acquired. Because draft agreements usually contain confidential information and releasing them could disadvantage the client (particularly given the adverse party's apparent intent to sue), the attorney's duty prevented release absent the present or former client's express consent after full disclosure.

On the second question, the opinion concluded a uniform one-year destruction policy is improper. It tied retention to several duties: DR 5-105 (avoiding representations adverse to a present or past client, which requires being able to check closed files for conflicts), DR 9-101 and DR 9-102 (preserving and maintaining records of client funds and property), and DR 4-101 (preserving confidences, which may be impossible if files cannot be consulted). The opinion concluded that an attorney should consider statutes of limitations, state and federal recordkeeping requirements, the requirements of the attorney's errors-and-omissions policy, and a case-by-case review of files in setting retention periods.

Currency note

This opinion was issued in 1984, before the Alaska Bar Association's adoption of the Alaska Rules of Professional Conduct (it applies the former Code of Professional Responsibility while noting the then-pending Model Rules) and before the 2009 revisions to those rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or retention period mentioned here.

Common questions

Q: Can a lawyer give the opposing party copies of draft documents from a former client's file?

A: The opinion concluded a lawyer may not, without the client's or former client's express consent after full disclosure, because draft agreements usually contain confidential information protected by the duty to preserve confidences and secrets.

Q: Is it proper to destroy closed client files after one year?

A: The opinion concluded a uniform one-year destruction policy is improper; retention should be decided case by case in light of limitations periods, recordkeeping requirements, insurance requirements, and conflict-checking needs.

Q: Why does file retention matter to a lawyer's ethical duties?

A: The opinion concluded that retaining files supports checking for conflicts with present or past clients (DR 5-105), preserving records of client funds and property (DR 9-101, DR 9-102), and meeting the duty to preserve confidences (DR 4-101).

Background and rules framework

The opinion applied the former Code's confidentiality rule (DR 4-101, the subject now treated by Model Rule 1.6), its conflict rule (DR 5-105), and its client-property and recordkeeping rules (DR 9-101, DR 9-102, now treated by Model Rule 1.15). It read the confidentiality duty as broader than the evidentiary privilege and work-product doctrine, citing Alaska Evidence Rule 503 and the Upjohn and Hickman decisions.

Citations and references

Rules of Professional Conduct (former Code; cf. Model Rules):

• DR 4-101 (preservation of confidences and secrets) (cf. Model Rule 1.6)
• DR 5-105 (refusing employment with differing interests)
• DR 9-101, DR 9-102 (preserving identity of client funds and property) (cf. Model Rule 1.15)

Rules of Evidence:

• Alaska Evidence Rule 503 and Commentary (attorney-client privilege)

Cases:

• Upjohn Co. v. United States, 449 U.S. 383 (1981), scope of the privilege
• Hickman v. Taylor, 329 U.S. 495 (1947), work-product doctrine

See also

• Alaska Ethics Op. 2003-3: Documents in the Client File on Termination
• Alaska Ethics Op. 2011-1: Original File to a Former Client
• Alaska Ethics Op. 96-3: Disclosure of Client Files Under Subpoena
• Alaska Ethics Op. 85-6: Disclosing Client Names Under Disclosure Laws

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/84-9.pdf

Original opinion text

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

Ethics Opinion No. 84-9
Providing Opposing Parties with Copies of Draft Documents; Record and
File Retention Requirements.
The committee has been asked to determine:

1. The propriety of providing the buyer of a business with copies of draft
   agreements prepared by an attorney in the course of that attorney's
   representation of a seller, where the seller has since allegedly breached the
   contract; and
2. Requirements for keeping closed client files and records for more than
   one (1) year.
   The committee concludes that an attorney may not provide an opposing
   party with draft documents prepared in the course of representing a client
   without the client's, or ex-client's, express consent. The committee further
   concludes that a uniform policy of discarding or destroying records after one (1)
   year is improper, and that retention of files, records and documents should be
   based on a case by case review of files and documents.
   Attorney "A" was retained to represent the seller of certain property, and
   in the course of that representation prepared draft and final documents. The
   transaction was concluded and final documents signed, but the attorney
   apparently did not retain a copy of the final executed agreement. The attorney's
   files do contain copies of draft agreements prepared in the course of
   negotiations. Attorney "A" has now been contacted by the buyer, asserting that
   the seller, attorney "A's" client, or perhaps ex-client, has breached the contract
   and that buyer intends to sue. Buyer has asked Attorney "A" to provide buyer
   with a copy of the contract. Attorney "A" is unable to provide a copy of the
   executed final agreement, but could, if proper, provide buyer with copies of
   draft agreements contained in attorney "A's" files.
   Alaska Canons of Professional Responsibility, DR 4-101 obligates a
   lawyer to preserve the confidences and secrets of a client. This ethical
   obligation involves no limitation on the source of the information and it must
   be invoked even in the absence of a judicial proceeding, a broader application
   than the evidentiary rules governing the attorney/client privilege and the
   work/product doctrine. AK Rules of Court, ER 503 and Commentary; see also
   Upjohn Company v. United States, 49 LW 4093, Jan. 13, 1981; Hickman v.
   Taylor, 329 U.S. 495 (1947). DR 4-101(B) provides that except where expressly
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permitted, "a lawyer shall not knowingly during or after termination of the
professional relationship to his client:

1. Reveal a confidence or secret of his client.
2. Use a confidence or secret of his client to the disadvantage of the client.
3. Use a confidence or secret of his client for the advantage of himself or of a
   third person, unless the client consents after full disclosure."
   The rule provides that a lawyer may reveal client confidences or secrets
   only with the consent of the client and only after a full disclosure, and in
   certain other circumstances not relevant to this inquiry.
   The Model Rules of Professional Conduct, adopted August 2, 1983 by the
   American Bar Association, and under consideration in Alaska, would broaden
   the obligation:
   Rule 1.6 thus imposes confidentiality on information relating to the representation
   even if it is acquired before or after the [attorney-client] relationship existed. It
   does not require the client to indicate information that is to be confidential, or
   permit the lawyer to speculate whether particular information might be
   embarrassing or detrimental. ABA Model R. of P.C., Rule 1.6, commentary.
   Because draft agreements may, and usually do, contain confidential
   information gained during the course of the attorney/client relationship, and
   because releasing such draft agreements may well disadvantage the client,
   especially given a subsequent apparent intent to file suit by the adverse party,
   attorney "A's" ethical obligation prevents him from releasing the documents,
   absent the express consent, after full disclosure, given by the present or former
   client.
   The second inquiry, with respect to records retention, involves DR 5-105,
   Alaska Canons of Professional Responsibility, obligating an attorney to avoid
   representing clients with differing interests; DR 9-102, the attorney's obligation
   to preserve a client's funds and property; and DR 4-101, the obligation to
   preserve the confidences and secrets of a client.
   Because an attorney must not accept or continue employment if the
   interest of another client, present or past, may impair the independent
   professional judgment of the attorney, the premature discarding or destruction
   of closed files may prevent an attorney from being able to adequately determine
   whether obligations to a prospective client would be impaired by representation
   of a past client. DR 5-105.

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DR 9-101 requires an attorney to preserve the identity of funds and
property of a client. The rule requires that the attorney maintain complete
records of all funds, securities and other properties of a client coming into the
possession of the lawyer, and to render appropriate accounts to his client with
respect to those items. While documents and drafts prepared by the attorney in
the course of representing a client may not fall strictly within the definition of
property, the attorney should consider the need to retain files and records for a
period sufficient to be able to produce them to the client, or in connection with
judicial proceedings, should that become necessary. Compliance with DR 4101, obligating an attorney to preserve the confidences and secrets of a client,
may be difficult if records, files and documents cannot be consulted where an
apparent conflict of interest arises, or where requests such as the first inquiry
arise.
It is unlikely that a uniform policy of destruction or discarding of records
after one (1) year would satisfy these considerations in every case.
The committee recommends that the attorney consider such things as
statutes of limitations, state and federal record keeping requirements, the
requirements of the attorney's errors and omissions insurance policy, and a
case-by-case review of files to determine appropriate retention periods. Law
office management publications will provide suggestions for prudent record
retention policies.
Adopted by the Alaska Bar Association Ethics Committee on August 16, 1984.
Approved by the Board of Governors on August 25, 1984.

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