If a lawyer keeps a former client's files only in electronic form, must the lawyer provide paper copies on request, and who pays for the conversion?
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This page answers the general question as of 2010. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
Opinion 357 (published December 2010) answers a question from a lawyer whose former client, after the representation ended, asked for all of the client's files. The lawyer had maintained the files solely in electronic form and offered to deliver them on a CD-ROM; the former client instead asked for paper copies, with the lawyer bearing the conversion cost. The lawyer asked whether he must convert the files to paper and, if so, who bears the cost.
The opinion concludes there is no general ethical prohibition against maintaining client records solely in electronic form, though it notes there are restrictions for particular types of documents. It concludes that lawyers and clients may enter into reasonable agreements addressing how files will be maintained, how copies will be provided on request, and who will bear the associated costs, and that making such agreements is prudent because it can avoid misunderstandings.
Absent such an agreement reached before the representation ended, the opinion concludes a lawyer must comply with a former client's reasonable request to convert electronic records to paper form. On cost, the opinion concludes that in most circumstances the former client should bear the cost of converting to paper any records that were properly maintained in electronic form. The lawyer may be required to bear the cost, however, where (1) neither the former client nor any substitute counsel can access the electronic records without undue cost or burden, and (2) the former client's need for the records in paper form outweighs the burden on the lawyer of furnishing paper copies. Whether the request is reasonable and whether the former client's need outweighs the lawyer's burden are fact-specific judgments.
In practice
Under the D.C. rules as they stood at the time of the opinion, a lawyer may keep a former client's records solely in electronic form and, absent an agreement reached before the representation ended, must honor a former client's reasonable request to convert those records to paper. The opinion concludes the former client ordinarily bears the conversion cost for records properly kept electronically, while the lawyer may bear it where neither the former client nor substitute counsel can access the electronic files without undue cost or burden and the former client's need for paper outweighs the burden on the lawyer.
The opinion concludes that a written agreement at the outset addressing file format, copies, and costs is prudent and can prevent disputes. Because the opinion predates later rule developments, verify the current D.C. rules before relying on specific requirements.
Common questions
Q: Can a lawyer keep client files only in electronic form?
A: The opinion concludes yes, as a general matter, though it notes there are restrictions for particular types of documents that should be kept in mind.
Q: If files are electronic, must the lawyer provide paper copies on request?
A: The opinion concludes that absent an agreement to the contrary, a lawyer must comply with a former client's reasonable request to convert electronic records to paper form.
Q: Who pays to convert the files to paper?
A: The opinion concludes the former client should usually bear the cost of converting records that were properly maintained electronically, but the lawyer may have to bear it where neither the former client nor substitute counsel can access the electronic records without undue cost or burden and the client's need for paper outweighs the lawyer's burden.
Q: How can lawyers avoid these disputes?
A: The opinion concludes that lawyers and clients may make reasonable agreements at the outset about how files are maintained, how copies are provided, and who bears the costs, and that entering into such agreements is prudent.
Background and rules framework
The opinion interprets D.C. Rule 1.16(d) (on termination, surrendering papers and property to which the client is entitled), read with Rule 1.4(a) (communication), Rule 1.6(a)(1) and (f) (confidentiality), and Rule 1.15(b) (safekeeping property). It applies these rules to the question of a former client's right to the file and the allocation of conversion costs when records are kept electronically.
Citations and references
Rules of Professional Conduct:
- D.C. RPC 1.16(d) / Model Rule 1.16 (surrender of papers and property on termination)
- D.C. RPC 1.4(a) / Model Rule 1.4 (communication)
- D.C. RPC 1.6(a)(1), 1.6(f) / Model Rule 1.6 (confidentiality)
- D.C. RPC 1.15(b) / Model Rule 1.15 (safekeeping property)
Other opinions cited:
- D.C. Bar Legal Ethics Op. 283 (1998): retention and destruction of client files; disposition where a former client cannot be located
See also
- ABA Formal Op. 471: Surrendering the Client File
- NY State Bar Op. 680: Electronic Record Retention
- NY State Bar Op. 950: Destroying Paper Mail, Keeping Scans
- DC Ethics Op. 359: Disposition of a Missing Client's Trust Funds
Source
- Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-357
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