Can a Maine lawyer keep only electronic copies of client correspondence and dispose of the paper?

Plain-English summary

An attorney asked whether the Maine Bar Rules require keeping a paper copy of correspondence when the lawyer already retains an electronic copy. The Commission found no rule that directly governs the manner of record retention, so it built the answer from three duties read together: the duty to keep the client reasonably informed under Bar Rule 3.6(a), the duty to maintain complete records of client property and deliver that property on request under Bar Rule 3.6(e)(2)(iii) and (iv), and the duty on withdrawal to avoid foreseeable prejudice by delivering the client's papers under Bar Rule 3.5(a)(2).

Drawing on Opinion #74 (an attorney's duty to safeguard a client's property continues after the representation ends) and Opinion #120 (the delivery duty is satisfied by making the file available for pickup at the office), the Commission answered the paper-copy question with a "qualified no." A lawyer need not keep paper if the electronic records still let both the lawyer and the client access the information in the future.

The qualification is the substance of the opinion. If an attorney dispenses with paper in favor of computerized records, the lawyer must remain able to provide copies in a format accessible to the lawyer and the client later. That may require retaining old versions of software, or the means by which a client can review or print the records, because changes in hardware or software can otherwise strand old files. The opinion observes that the lawyer "must be mindful that the obligation to the client may require the attorney to maintain the means to provide copies of those records in a format that will make them accessible to both the attorney and the client in the future." The Commission cautioned that an electronic storage format may not yet be sufficiently universal to let a lawyer satisfy the delivery duty simply by handing the client a disc.

In practice

Under the Maine Bar Rules as the opinion read them (the safekeeping and delivery duties now correspond to Maine Rules of Professional Conduct 1.15 and 1.16(d), and the communication duty to Rule 1.4), the opinion holds that electronic-only retention of client records is permissible so long as the chosen format preserves the client's and the lawyer's meaningful future access. The opinion frames the test functionally rather than by medium: the goal of communicating with and safeguarding property for the client is the same whether the lawyer uses paper, electronic files, or a combination, and the lawyer must pick means that account for the client's access to and comfort with technology. The opinion identifies retention of legacy software or hardware as a foreseeable component of that duty when records are kept only in digital form.

Common questions

Q: Does a Maine lawyer have to keep paper copies of client correspondence?

A: No, with a qualification. The opinion answers the question with a "qualified no": a lawyer may keep electronic copies instead of paper, provided the electronic records remain accessible to both the lawyer and the client in the future.

Q: What is the catch with electronic-only retention?

A: Future access. The opinion holds that the lawyer must maintain the means to provide copies in a usable format later, which may require keeping old software or hardware so that records created in an obsolete format can still be opened or printed.

Q: Can a lawyer satisfy the duty to deliver the file just by giving the client a disc?

A: Not necessarily. The opinion cautions that an electronic storage format may not be sufficiently universal for the client to read, so the lawyer should consider whether handing over a disc actually gives the client meaningful access.

Background and rules framework

The opinion interprets Maine Bar Rule 3.6(a) (keeping the client reasonably informed), Rule 3.6(e)(2)(iii) and (iv) (maintaining records of and delivering client property), and Rule 3.5(a)(2) (avoiding foreseeable prejudice to the client on withdrawal). These correspond to ABA Model Rule 1.4 (communication), Model Rule 1.15 (safekeeping property), and Model Rule 1.16(d) (surrender of papers and property on termination). The opinion does not adopt a rule on which documents within a file are "client property"; it expressly leaves that question for another day (later answered in Opinion #187).

Citations and references

Rules of Professional Conduct:

• Model Rules 1.4, 1.15, 1.16(d)
• Maine Bar Rules 3.6(a), 3.6(e)(2)(iii) and (iv), 3.5(a)(2)

Other opinions cited:

• Maine Prof. Ethics Comm'n Ops. #51 (1984), #74 (1986), #120 (1990), and #143 (1994).

See also

• CA Op. 2007-174: Electronic Versions of the Client File at Termination
• NY State Bar Op. 680: Electronic Record Retention
• NY State Bar Op. 950: Destroying Paper Mail, Keeping Scans

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=89459

Original opinion text

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

Issued by the Professional Ethics Commission

Date Issued: January 28, 2004

Question

Is an attorney obligated to keep a paper copy of the attorney?s correspondence, if the attorney retains a copy of the correspondence in a computer or by other means of electronic storage?

Opinion

There is no provision of the Code of Professional Responsibility of the Maine Bar Rules that directly addresses the manner in which an attorney should retain records in connection with the representation of a client. Several provisions of the Code, however, when read together in connection with previous opinions of this Commission, provide the relevant framework for considering this question.

First, an attorney is obligated to ?take reasonable measures to keep the client informed on the status of the client?s affairs.? Rule 3.6(a).

Second, as part of his or her obligation to preserve a client?s property, an attorney must take steps to ?[m]aintain complete records of all . . . properties of a client coming into possession of the lawyer? and ?[d]eliver to the client, as requested by the client, . . . properties in possession of the lawyer which the client is entitled to receive.? Rule 3.6(e)(2)(iii) & (iv). [1]

Third, an attorney withdrawing from representation must ?take reasonable steps to avoid foreseeable prejudice to the rights of his client, including . . . delivering to the client all papers and property to which the client is entitled.? Rule. 3.5(a)(2).

In Opinion #74, we addressed a question posed by a law firm that wished to return ?closed client files on matters for which it is no longer providing services.? The firm asked whether it could return files in the absence of a client?s request for them and whether it could dispose of files of clients who did not take custody of their files. We answered those questions in the affirmative, identifying several principles that also are relevant to the instant inquiry. First, we recognized that the obligation of an attorney to safeguard a client?s property does not cease simply because the representation has ended. Second, we recognized that when a file is returned to a client in the absence of a request, the attorney is obligated to ensure that the client who receives the file is capable of understanding its importance and discerning what is valuable within it. Third, we recognized that an attorney unable to locate a client in order to return a file or obtain consent to its destruction must be careful not to destroy documents that might be valuable or useful in the future.

In Opinion #120, we addressed the question whether an attorney is obligated to undertake the expense of delivering a file to a client?s new counsel. We concluded that an attorney satisfies the obligation to deliver paper and property to a client if the attorney makes the file available for the client to pick up at the attorney?s office.

With these Rules and Opinions in mind, we answer the question posed with a qualified no.

While the specific steps that an attorney may take to discharge the obligation to communicate with clients during the course of representation may vary with the nature of the case and the needs of the client, the Code obligates an attorney to ensure that the client is aware of important correspondence and documents prepared or exchanged by the attorney on the client?s behalf. Similarly, the obligation of an attorney to safeguard, retain, and return property to the client requires that important correspondence and documents created by the attorney on the client?s behalf be retained in a way that insures that the client and the attorney are able to access these records in the future.

Whether an attorney chooses to discharge these duties by providing verbal or written summaries of correspondence, forwarding paper copies of correspondence to the client, providing electronic files, or by some combination of means, the goal of the effort is the same. The means by which the attorney informs the client and retains files must enable the attorney to discharge these duties and must consider the client?s access to technology and comfort with it, as well as the ability of the client to comprehend the nature of the information provided by the attorney.

If an attorney dispenses with the retention of paper files in favor of computerized records, the attorney must be mindful that the obligation to the client may require the attorney to maintain the means to provide copies of those records in a format that will make them accessible to both the attorney and the client in the future. Because the attorney is obligated to ensure that the client is able to make informed decisions regarding the disposition of the file and also must take care in destroying files to be sure that useful information is retained, an attorney will need to consider how new hardware or software will impact future access to old computerized records. Thus, for example, it may be necessary for an attorney to retain old versions of software in order to ensure that computerized records may be accessed or printed when requested by the client. Similarly, as part of the obligation to deliver files, an attorney may need to retain the means by which a client may review or print computerized records. While an attorney may satisfy these ethical obligations by providing paper copies of computerized records to the client, electronic file retention is also acceptable provided that the client will have meaningful access to the electronic file in the future. The attorney should consider whether the means by which computerized records are kept and stored might not be sufficiently universal at this time to allow that attorney, who retains only computer records, to discharge these obligations in the future simply by delivering to the client a disc with data stored on it.

Footnote

[1] Our Opinions uniformly have considered "files" maintained by the attorney in the course of representation of the client to be property of the client. See, e.g. Opinion #51 (issued 12/5/84); Opinion #74 (issued 10/1/86); Opinion #120 (issued 12/11/90); Opinion #143 (issued 7/26/94). We have never been asked, however, whether the Code requires that certain categories of documents be maintained as part of the file or whether all records maintained by the attorney as part of the file, including the attorney's notes and internal communications of an administrative nature, are property of the client. We note that this is an area upon which there is a wide divergence of opinion. See, e.g., Brian J. Slovut, Eliminating Conflict at the Termination of the Attorney-Client: A Proposed Standard Governing Property Rights in the Client's File, 76 Minn. L. Rev. 1483, 146 (1992) (discussing the two standards applied by courts and state ethics opinions; one that assigns ownership of the entire file to the client and the other that allows attorneys to retain ownership in their work-product). Because resolution of the instant question does not require that we answer these questions, we will not answer them now.