Can a Florida law firm store its closed client files only electronically, without keeping paper copies?

Plain-English summary

After receiving many inquiries about electronic file storage in the wake of natural disasters such as hurricanes, the Board of Governors directed the committee to opine on whether lawyers may store law firm files exclusively in electronic form, without keeping a paper copy. The opinion surveys the few Florida rules that address records retention: Rule 4-1.5(f)(4) (six-year retention of executed contingent fee contracts and closing statements), Rule 4-1.8(j) (six-year retention of the certified Statement of Insured Client's Rights), Rule 4-7.7(h) (three-year retention of advertisements and dissemination records), and Rule 5-1.2(d) (six-year retention of trust accounting records). The opinion notes that, with limited exception (such as Rule 5-1.2(b)(3) on original cancelled trust account checks), the rules do not specify the method of retention, and that prior Florida opinions emphasize the client's wishes and contacting clients before destroying closed files but are silent on storage method.

Reviewing opinions from other jurisdictions, including ABA Informal Opinion 1127 and opinions from New York and North Carolina, the committee observes that those opinions generally conclude electronic retention is permissible with appropriate safeguards, particularly that documents required to be kept in original form are excepted and that stored records be secure against inadvertent loss and readily producible.

The committee concludes the main consideration is that the appropriate documents be maintained, not the method of storage, so a firm may store files electronically unless a statute or rule requires retention of an original, the original is the client's property, or destruction of the paper would adversely affect the client's interests. It cautions that electronic files must be readily reproducible and protected from inadvertent modification, degradation, or destruction, that reasonable copying charges may be made per Opinion 88-11 (Reconsideration), and that lawyers must take reasonable precautions to ensure confidentiality under Rule 4-1.6, particularly when relying on third parties to convert and store documents. The committee states a lawyer is not required to store files electronically, although a lawyer may do so.

In practice

Under the Florida rules as they stood at the time of this 2006 opinion, a firm may keep closed files electronically rather than on paper. The opinion makes the controlling limits three: a statute or rule requiring an original, an original that is the client's property, and paper destruction that would harm the client. It conditions permissible electronic storage on the files being readily reproducible and protected from inadvertent modification, degradation, or destruction, and on reasonable confidentiality precautions under Rule 4-1.6, especially when third parties handle conversion and storage. The opinion treats electronic storage as optional, not required. Because some retention periods and the trust-record rules described here have been amended since 2006 (the opinion itself flags one amendment to Rule 5-1.2(b)(3)), specific retention requirements should be checked against current rules.

Common questions

Q: Can a Florida firm go paperless and destroy original paper files?

A: Generally yes for storage method, but the opinion bars destroying paper where a statute or rule requires retaining an original, where the original is the client's property, or where destruction would adversely affect the client's interests.

Q: What safeguards does the opinion require for electronic files?

A: Per the opinion, electronic files must be readily reproducible and protected from inadvertent modification, degradation, or destruction, and the lawyer must take reasonable precautions to ensure confidentiality under Rule 4-1.6.

Q: Does a lawyer have to keep originals of certain documents?

A: Yes for documents a statute or rule requires in original form or that are the client's property. The opinion cites other jurisdictions excepting items like wills, contracts, and stock certificates from electronic-only storage.

Q: Is a lawyer required to store files electronically?

A: No. The opinion states a lawyer is not required to store files electronically, although a lawyer may do so, and encourages technology for cost-effective records management.

Background and rules framework

The opinion interprets the records-retention provisions of the Rules Regulating The Florida Bar, including Rule 4-1.5(f)(4) (Model Rule 1.5, fees), Rule 4-1.8(j), Rule 4-7.7(h) (advertising records), and the trust-accounting rules 5-1.2(b)(3) and 5-1.2(d) (Model Rule 1.15), together with the confidentiality duty of Rule 4-1.6 (Model Rule 1.6). It draws on prior Florida opinions and out-of-state authority on electronic document retention.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.6 / Fla. Rule 4-1.6 (confidentiality of information)
• Model Rule 1.5 / Fla. Rule 4-1.5(f)(4) (contingent fee record retention)
• Fla. Rules 4-1.8(j), 4-7.7(h) (insured-client and advertising record retention)
• Model Rule 1.15 / Fla. Rules 5-1.2(b)(3), 5-1.2(d) (trust accounting records)

Other opinions cited:

• Fla. Ethics Ops. 63-3, 71-62, 81-8 (client wishes and contacting clients before destroying files); 88-11 (Rec.) (copy charges)
• ABA Informal Op. 1127 (1970); New York County Op. 725 (1998); New York State Op. 680 (1996); North Carolina RPC 234 (1996)

See also

• Florida Bar Op. 10-2: Confidentiality on Devices With Storage Media
• Florida Bar Op. 12-3: Cloud Computing
• Florida Bar Op. 10-3: A Deceased Client's Confidential Information

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-06-1/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-06-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 06-1
April 10, 2006
Advisory ethics opinions are not binding
Lawyers may, but are not required to, store files electronically unless: a statute or rule
requires retention of an original document, the original document is the property of the client, or
destruction of a paper document adversely affects the client’s interests. Files stored
electronically must be readily reproducible and protected from inadvertent modification,
degradation or destruction.
RPC: 4-1.5(f)(4), 4-1.6, 4-1.8(j), 4-7.7(h), 5-1.2(b)(3), 5-1.2(d)
Opinions: 63-3, 71-62, 81-8, 88-11 (Rec.), ABA Informal Ethics Opinion 1127 (1970), New
York County Ethics Opinion 725 (1998), New York State Ethics Opinion 680
(1996), North Carolina Ethics Opinion RPC 234 (1996)
The Professional Ethics Committee has been directed by The Florida Bar Board of
Governors to issue an opinion regarding electronic storage of law firm files. The bar has
received many inquiries regarding electronic storage of law firm files in the wake of natural
disasters, such as hurricanes. Some lawyers have asked whether they may store files exclusively
electronically, without retaining a paper copy.
There are very few Rules Regulating The Florida Bar that address records retention.
Rule 4-1.5(f)(4) requires that lawyers retain copies of executed contingent fee contracts and
executed closing statements in contingent fee cases for 6 years after the execution of the closing
statement in each contingent fee matter. Additionally, lawyers who are paid by insurance
companies to represent insureds must retain a copy of the Statement of Insured Client’s Rights
that the lawyer has certified was sent to the client for 6 years after the matter is closed. Rule 4-
1.8(j), Rules of Professional Conduct. Copies of advertisements and records of the dissemination
location and dates must be retained for 3 years after their last use. Rule 4-7.7(h), Rules of
Professional Conduct. Finally, trust accounting records must be retained for 6 years following
the conclusion of the matter to which the records relate. Rule 5-1.2(d), Rules Regulating The
Florida Bar.
The Rules Regulating The Florida Bar, with limited exception, do not specify the method
by which records must be retained. As an example of an exception, Rule 5-1.2(b)(3) requires
that lawyers retain original cancelled trust account checks, unless the financial institution they
are drawn on will provide only copies. [Note: Rule 5-1.2(b)(3) has since been amended to allow
either original cancelled checks or copies as long as they are legible and include all
endorsements and tracking information.]
The committee has indicated in prior opinions that “the attorney must place primary
emphasis on the desires of the client.” Florida Ethics Opinion 81-8. The committee has further
determined that lawyers should make diligent attempts to contact clients to determine their
wishes regarding file retention before the lawyer destroys any closed files. Florida Ethics
Opinions 63-3, 71-62, and 81-8. These opinions are silent as to the method of file retention.

Page 2

Many opinions from other states address records retention issues and, more specifically,
whether files may be stored electronically as opposed to paper copies. These opinions, too
numerous to cite, raise issues specific to electronic document retention that the committee finds
worthy of mention. The opinions generally conclude that, with appropriate safeguards,
electronic document retention is permissible. See, e.g., ABA Informal Ethics Opinion 1127
(1970) (Lawyers may use company that stores attorney files on computer as long as the material
is available only to the particular attorney to whom the files belong, the company has procedures
to ensure confidentiality, and the lawyer admonishes the company that confidentiality of the files
must be preserved); New York County Ethics Opinion 725 (1998) (Permissible for a lawyer to
retain only electronic copies of a file if “the evidentiary value of such documents will not be
unduly impaired by the method of storage”); New York State Ethics Opinion 680 (1996)
(Client’s file may be stored electronically except documents that are required by the rules to be
kept in original form, but lawyer should ensure that documents stored electronically cannot be
inadvertently destroyed or altered, and that the records can be readily produced when necessary);
and North Carolina Ethics Opinion RPC 234 (1996) (Closed client files may be stored
electronically as long as the electronic documents can be converted to paper copies, except for
“original documents with legal significance, such as wills, contracts, stock certificates”).
This committee concludes that the main consideration in file storage is that the
appropriate documents be maintained, not necessarily the method by which they are stored.
Therefore, a law firm may store files electronically unless: a statute or rule requires retention of
an original document, the original document is the property of the client, or destruction of a
paper document adversely affects the client’s interests.
The committee agrees with other jurisdictions that have noted practical considerations
involved in electronic file storage. The committee cautions lawyers that electronic files must be
readily reproducible and protected from inadvertent modification, degradation or destruction.
The lawyer may charge reasonable copying charges for producing copies of documents for
clients as noted in Florida Ethics Opinion 88-11 Reconsideration. Finally, lawyers must take
reasonable precautions to ensure confidentiality of client information, particularly if the lawyer
relies on third parties to convert and store paper documents to electronic records. Rule 4-1.6,
Rules of Professional Conduct.
The committee encourages the use of technology, such as electronic file storage, to
facilitate cost-effective and efficient records management. However, the committee is of the
opinion that a lawyer is not required to store files electronically, although a lawyer may do so.