Can a Maine lawyer destroy paper files after scanning them to CD, and run a file-storage business that uses nonlawyer staff?

Plain-English summary

An attorney proposed to start a business that scans other firms' closed files to CD, after culling documents of intrinsic value, and asked two questions: whether the paper file could then be destroyed, and whether nonlawyer employees could scan, review, and certify the CDs. The Commission answered both with qualifications.

On destruction, the answer is a qualified yes. The principles for electronic versus tangible retention come from Opinion #183: if the CD or other electronic storage complies with #183 (meaning the records stay accessible to the lawyer and the client in the future), the tangible file may be destroyed. The opinion preserves the limit from Opinion #74 that originals may not be destroyed if there is a reasonable possibility they may be needed in the future, including executed wills, contracts, promissory notes, and other documents with intrinsic value in their original form.

On nonlawyer staff, the Commission located primary responsibility for file maintenance and disposition with the attorney who represents the client, not with the attorney operating the storage business, and noted it matters little that the storage business is itself owned by a lawyer. File storage retained by a firm is generally a "law-related service" as defined in Rule 3.2(h)(2). Under Rule 3.2(h)(1), the operating attorney is subject to the Code as to those services unless the business is conducted in circumstances distinct from the lawyer's provision of legal services, with measures assuring customers that the services are not legal services. The opinion draws a line at culling: deciding which documents may be destroyed and which must be kept requires legal judgment and is a legal service, so when the operating attorney performs that task the Code governs regardless of how separate the business is, and general access to confidential client information implicates the conflict provisions of Rules 3.4(c) and 3.4(d). The retaining attorney remains responsible for nonlawyer assistants under Rule 3.13(c) and for using reasonable care to prevent others from improperly disclosing client confidences under Rule 3.6(h)(2).

In practice

Under the Maine Bar Rules as the opinion read them (the law-related-services provisions correspond to ABA Model Rule 5.7, the nonlawyer-assistant and confidentiality duties to Model Rules 5.3 and 1.6), the opinion holds that there is no ethical bar to electronic file retention or to subcontracting the tasks of storage and disposition, provided the scanning complies with Opinion #183 and intrinsic-value originals are preserved per Opinion #74. The opinion holds that the attorney who generated the file remains primarily responsible for its storage and disposition. For the lawyer who operates the storage business, the opinion makes the analysis turn on two things: whether the business performs any legal service (culling files, which requires legal judgment, is one) and whether the business is operated as an entity genuinely separate from the lawyer's legal practice. If either condition is present, the Code governs the operating lawyer's conduct.

Common questions

Q: Can a Maine lawyer destroy a paper file after scanning it to CD?

A: Yes, with conditions. The opinion concludes the tangible file may be destroyed if the electronic storage complies with Opinion #183 (the records stay accessible to lawyer and client in the future) and originals of intrinsic value, such as wills, contracts, and promissory notes, are kept per Opinion #74.

Q: Whose responsibility is the file once it goes to an outside storage business?

A: The original attorney's. The opinion holds primary responsibility for file maintenance and disposition stays with the attorney who represents the client, not the storage business, even if the storage business is itself owned by a lawyer.

Q: When is the lawyer who runs the storage business bound by the ethics rules?

A: When the business performs a legal service or is not truly separate. The opinion holds that culling files requires legal judgment and is a legal service, so the Code governs that task; storage tasks are "law-related services" governed by the Code unless the business is run as an entity distinct from the lawyer's legal practice with notice to customers that the services are not legal services.

Q: Can nonlawyer employees scan and certify the files?

A: Yes, subject to supervision. The opinion frames scanning and certifying as tasks an attorney may subcontract, while the retaining lawyer remains responsible for nonlawyer assistants under Rule 3.13(c) and for preventing improper disclosure of client confidences by others under Rule 3.6(h)(2).

Background and rules framework

The opinion interprets Maine Bar Rule 3.2(h)(1) and (2) (law-related services and when the Code applies to them), Rule 3.13(c) (responsibility for nonlawyer assistants), Rule 3.6(h)(2) (reasonable care to prevent others from disclosing client confidences), and Rules 3.4(c) and (d) (conflicts arising from access to confidential information). These correspond to ABA Model Rule 5.7 (responsibilities regarding law-related services), Model Rule 5.3 (nonlawyer assistance), and Model Rule 1.6 (confidentiality). The opinion builds on Opinion #183 (electronic retention) and Opinions #74 and #143 (file storage, destruction, and disposition planning).

Citations and references

Rules of Professional Conduct:

• Model Rules 5.7, 5.3, 1.6
• Maine Bar Rules 3.2(h)(1) and (2), 3.13(c), 3.6(h)(2), 3.4(c) and (d)

Other opinions cited:

• Maine Prof. Ethics Comm'n Ops. #74 (1986), #143 (1994), and #183 (2004).

See also

• Maine Ethics Op. 183: Electronic File Retention
• CA Op. 2001-157: Retention and Destruction of Former-Client Files
• NY State Bar Op. 950: Destroying Paper Mail, Keeping Scans
• ABA Formal Op. 95-393: Client Files to Nonlawyer Supervisors

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=89456

Original opinion text

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

Issued by the Professional Ethics Commission

Date Issued: April 1, 2004

Question

An attorney proposes to start a business storing legal files for other attorneys and law firms. The business plan is to scan documents onto CD format after culling the files for documents that have intrinsic value in their original version. The attorney asks two questions:

• After originals of intrinsic value are culled and the remainder of the file scanned onto CDs, may the tangible file then be destroyed?

• May non-attorney employees of the business, consistent with the Code of Professional Responsibility, perform such tasks for the business as scanning documents onto CD format, reviewing the CDs, and certifying the CDs as true records of the files?

Opinion

The first question is whether tangible documents in a file can be destroyed after certain originals are culled and kept and the remainder scanned onto an electronic format. The answer is a qualified ?yes?. The principles governing retention of records in an electronic, as opposed to a tangible format are outlined in Opinion #183 (1/28/04).

?[T]he 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.?

Assuming that the proposed file storage on CDs, or on any other electronic format, complies with Opinion #183, then the tangible file may be destroyed. [1]

The second question lists various tasks that the employees of the file storage business might perform and asks whether having non-attorney employees perform those tasks would compromise any ethical rules. Initially, the Commission notes that while the provisions of the Code are binding on all attorneys, including the attorney proposing to operate the file storage business, primary responsibility for file maintenance and disposition lies with the attorney employed by the client, not with the attorney operating the storage business. See, e.g., Opinion #74, supra, and Opinion #143 (7/26/94). In fact, for this purpose, it matters little that the file storage business itself is owned and/or operated by an attorney.

What does matter is that the file storage business will be retained by attorneys or law firms to accomplish tasks that are part of the attorney?s or firm?s practice of law. Attorneys frequently contract with outside businesses in the course of rendering legal services, such as copying or printing firms. Rule 3.13(c) describes an attorney?s responsibilities for non-lawyer assistants, while Rule 3.6(h)(2) requires lawyers to use reasonable care to prevent ?others whose services are utilized by the lawyer from improperly disclosing or using confidences or secrets of a client.? All attorneys should have a plan for storage and/or disposition of files. See Opinion #143. Whether that plan involves storage at the attorney?s office or the hiring of a business to scan files and store them in CD format, the attorney who generated the files remains responsible for them and for compliance with the ethical rules relating thereto.

The question that gave rise to this opinion, however, was asked by the attorney proposing to operate the electronic file storage business. That attorney?s ethical obligations would depend largely on the way the business is structured. The tasks generally involved in the storage of legal files are ?law-related services,? defined in Rule 3.2(h)(2) as:

?services that might reasonably be performed in conjunction with and in substance are related to the provision of legal service, and that are not prohibited as unauthorized practice of law when provided by a nonlawyer.?

Hence, under Rule 3.2(h)(1), the attorney operating the file storage business would be subject to the Code of Professional Responsibility with respect to those services if the file storage business were not conducted in circumstances ?distinct from the lawyer?s provision of legal services to clients? with appropriate measures assuring those contracting with the business that ?the services of the separate entity are not legal services.?

The inquiring attorney indicated that he or she might review the files intended for storage. Culling records to determine which tangible documents may be destroyed and which must be kept requires legal judgment and would be a legal service sub-contracted by the original attorney for the original client. If the attorney operating the business performs these tasks, then the Code of Professional Responsibility will clearly govern the rendering of that service. Furthermore, general access to confidential client information by the attorney or by his or her staff implicates Rules 3.4(c) and 3.4(d) and hence would impact on the attorney?s acceptance of other employment. Since the culling of records is a legal service rather than a ?law-related service,? the Code will govern whether or not the file storage business is distinct from the attorney?s regular legal practice.

In conclusion, there is no ethical bar to file retention in an electronic format or to subcontracting the tasks associated with file storage and disposition, provided those functions are performed in accordance with the principles noted above. The attorney who generates the file remains primarily responsible for storage and disposition. The Code of Professional Responsibility governs an attorney operating a file storage business if he or she performs any legal services in connection with the business or if the business is not operated as a separate and distinct entity from the attorney?s legal practice.

Footnote

[1] Of course, original documents may not be destroyed ?if there is a reasonable possibility that they may be needed in the future.? Opinion #74 (10/1/86). This would include such executed documents as wills, contracts, and promissory notes, and other documents with intrinsic value in their original form.