Can a Maine lawyer donate old, inactive client files of historical significance to a library or archive?

Plain-English summary

Bar Counsel asked whether a firm holding old, inactive files of historical significance (some dating to the mid-to-late 1800s, generated by a single family in connection with a public undertaking) may donate them to a library or educational institution, given that many clients and the lawyers who handled the matters are long deceased. The Commission concludes that the historical value of the files does not override confidentiality: the duties under Rule 1.6 extend indefinitely and survive the death of both attorney and client, and may continue after a corporate client dissolves.

The opinion holds that, absent informed consent or another Rule 1.6 exception, a lawyer must conduct an individualized, document-by-document assessment to determine whether each item is a "confidence" (information protected by the attorney-client privilege) or a "secret" (other information whose disclosure could adversely affect a material interest of the client, or that the client instructed not be revealed). Material that is clearly non-legal and segregated, such as copies of ancient public documents or correspondence already directed to third parties outside the privilege, may fall outside those definitions. But because whether a client regarded information as confidential is a subjective question unique to the client, disclosure is prohibited unless the lawyer can make a reasonably reliable determination that the client did not consider the information confidential.

The opinion adds two limits. A waiver by the family, a personal representative, or a similar person standing in the shoes of a deceased client does not waive the attorney's confidentiality obligation (citing Commission Opinion #192). And any review must be conducted by the attorney or at the attorney's direction; it is not proper to let a non-lawyer or an outside party (such as a representative of the receiving institution) review the files, even under a promise of confidentiality.

In practice

Under the Maine rule as the opinion read it in 2016, a lawyer holding old client files, however historically significant, may not turn them over to a library or institution unless the lawyer first determines, file by file, that the material is not a client confidence or secret, or that the client consented or another Rule 1.6 exception applies. The opinion holds that the confidentiality duty survives the death of the client and the lawyer, that a representative of a deceased client cannot waive it, and that the review itself must be done by the attorney or under the attorney's direction, not by the receiving institution.

Common questions

Q: Does a Maine lawyer's duty of confidentiality end when the client dies?

A: No. The opinion states the obligations imposed by Rule 1.6 extend indefinitely and survive the death of the client as well as the attorney, and may continue after a corporate client is dissolved.

Q: Can very old files be donated to an archive because of their historical value?

A: Only after an individualized, document-by-document review. The opinion concludes historical value does not trump confidentiality; files may be disclosed only where they are not confidences or secrets, or where consent or another Rule 1.6 exception applies.

Q: Can a deceased client's family consent to the disclosure?

A: No. The opinion states a waiver by the family, a personal representative, or a similar person standing in for a deceased client is not sufficient to waive the attorney's confidentiality obligation.

Q: Who may review the files to decide what can be released?

A: The attorney, or someone acting at the attorney's direction. The opinion concludes it would not be proper to let a non-lawyer or an outside party review the files, even if that party agreed to keep questionable materials confidential.

Background and rules framework

The opinion interprets Maine Rule of Professional Conduct 1.6 (confidentiality of information; ABA Model Rule 1.6), including its definitions of "confidence" and "secret" in Rule 1.6(d) and the limited exceptions in Rule 1.6(b). It situates the analysis against prior Commission Opinion #192 (deceased client) and authority from other jurisdictions.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.6 (confidentiality of information)
• Maine R. Prof. Conduct 1.6 (including 1.6(b), 1.6(d)); Rule 1.17A (sale of a law practice)

Cases:

• Board of Overseers of the Bar v. Turesky, File No. 93-S-124 (Report Apr. 26, 1995).

Other opinions cited:

• Maine Prof. Ethics Comm'n Op. #192 (2007): confidential information requested by a personal representative of a deceased client.
• Oregon Formal Op. 2005-23 (rev. 2014); Virginia LEO #1307 (1989); D.C. Bar Op. 128 (1983); Oklahoma Bar Op. 301 (1983).

See also

• ABA Formal Op. 92-369: Files of a Deceased Sole Practitioner
• ABA Formal Op. 471: Surrendering Papers to a Former Client
• ABA Formal Op. 479: The "Generally Known" Exception for Former Clients

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=675962

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 6, 2016

QUESTION

Bar Counsel has inquired whether, and under what circumstances, a law firm may consider donating old, inactive legal files that may have historical significance to a library or educational institution. As a matter of background, the attorney holds a variety of client files, many of which were generated by a single family, dealing with a public undertaking of significant historical interest in the attorney?s area. The files range back as early as the mid- to late 1800s, and run through the early to mid-1900s. The single family referenced above has indicated their consent, but for many of the other files, both the clients as well as the attorneys who were involved in the legal work generating the files are long since deceased, and it may be difficult to find a representative of either the attorneys or the families. Given the passage of time, and the historical import of the files, may the firm turn over these client files to a library or educational institution?

OPINION

Despite the historical significance of the files, the answer to the inquiry is that the attorney?s and the firm?s obligations of confidentiality survive death. The attorney must conduct an examination of the files to ascertain that the information contained is not a ?confidence? or ?secret? of the client, in which case it may be disclosed. Alternatively, the attorney, based upon all of the information available, must be able to make a reasonably reliable determination that the original client consented to disclosure or that disclosure is authorized under Rule 1.6(a)(ii).

An attorney?s obligation to hold and keep the confidences and secrets of a client in a confidential manner is codified generally in Rule 1.6 of the Maine Rules of Professional Conduct. In relevant part, Rule 1.6 states as follows:

RULE 1.6 CONFIDENTIALITY OF INFORMATION

• A lawyer shall not reveal a confidence or secret of a client unless, (i) the client gives informed consent; (ii) the lawyer reasonably believes that disclosure is authorized in order to carry out the representation; or (iii) the disclosure is permitted by paragraph (b).

• A lawyer may reveal a confidence or secret of a client to the extent the lawyer reasonably believes necessary:

• to prevent reasonably certain substantial bodily harm or death;

• to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services;

• to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services;

• to secure legal advice about the lawyer's professional obligations;

• to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client;

• in connection with the sale of a law practice under Rule 1.17A or to detect and resolve conflicts of interest arising from the lawyer's change of employment or from changes in the composition or ownership of a firm. In those circumstances, a lawyer may disclose with respect to each affected client the client's identity, the identities of any adverse parties, the nature and extent of the legal services involved, and fee and payment information, but only if the information revealed would not compromise the attorney-client privilege or otherwise prejudice any of the clients. The lawyer or lawyers receiving the information shall have the same responsibilities as the disclosing lawyer to preserve the information regardless of the outcome of the contemplated transaction; or

• to comply with other law or a court order.

• Before revealing information under paragraph (b) (1), (2), or (3), the lawyer must, if feasible, make a good-faith effort to counsel the client to prevent the harm and advise the client of the lawyer's ability to reveal information and the consequences thereof. Before revealing information under paragraph (b)(5) or (6), in controversies in which the client is not a complainant or a party, the lawyer must, if feasible, make a good faith effort to provide the client with reasonable notice of the intended disclosure.

• As used in Rule 1.6, "confidence" refers to information protected by the attorney-client privilege under applicable law, and "secret" refers to other information relating to the representation if there is a reasonable prospect that revealing the information will adversely affect a material interest of the client or if the client has instructed the lawyer not to reveal such information.

The obligations imposed by Rule 1.6 extend indefinitely. They survive the death of the attorney, as well as the client, and may continue after the dissolution of a corporate client. Absent informed consent from the affected clients or some other applicable exception, a lawyer may not divulge information that constitutes a ?confidence? or ?secret? as defined above. This would mean that an individualized, document-by-document assessment would need to be undertaken in order to determine whether the particular document and the information within it constituted a ?confidence? or ?secret? of the client at the time it was made.

The Commission is not unmindful that this opinion may well restrict information that may have independent historical value. However, those values, though significant, do not trump the attorney?s obligation to keep the client?s confidences and secrets confidential. See, e.g., Oregon Formal Opinion 32005-23 (revised 2014); Virginia Legal Ethics Opinion #1307, dated November 13, 1989; Opinion #128, Committee of Legal Ethics of the District of Columbia Bar, dated July 19, 1983; and Oklahoma Bar Association Ethics Opinion #301, adopted June 16, 1983.

If the attorney believes that the files may contain a variety of matters that do not constitute confidences or secrets, the attorney nonetheless must make that determination consistent with Rule 1.6(d). A waiver by the family, the Personal Representative of an estate (to the extent one still exists) or similar person appearing to stand in the shoes of a deceased client is not sufficient to constitute a waiver of the attorney?s obligations of confidentiality. See Professional Ethics Commission Advisory Opinion # 192: Deceased client: Confidential information requested by Personal Representative, dated June 20, 2007.

We would note that to the extent the materials maintained by the attorney and that attorney?s law firm include files that are clearly segregated and marked in a manner that would make them non-legal (for example, copies of ancient and public documents, information that was directed to others outside of the attorney/client privilege, such as correspondence to third parties, and similar documents), those items may fall outside of the definition of ?confidence? or ?secret.? However, the attorney must be mindful, in making an analysis under Rule 1.6(d), that the determination of whether a client considered materials to be a ?confidence? or ?secret? is a subjective one unique to the client. Absent the attorney being able to make a reasonably reliable determination that the client did not consider the information to be confidential, disclosure is prohibited by Rule 1.6. See Board of Overseers of the Bar v. Turesky, File No. 93-S-124, Report dated April 26, 1995.

Lastly, it should be noted that in the event that a review is contemplated, it must be undertaken by the attorney and at that attorney?s direction. It would not be proper to allow any non-lawyer or other personnel not affiliated with the lawyer?s practice to review the files regardless of whether the outside party (such as a representative of a charitable or educational institution) agreed to hold any questionable materials confidential. See Virginia Legal Ethics Opinion 1307, supra.

CONCLUSION

In short, absent a reasonably reliable indication of informed consent or some other exception to the requirements of Rule 1.6 or a meaningful ability to determine that the materials held by the attorney were not client ?confidences? or ?secrets,? the attorney may not divulge the confidential materials in that attorney?s possession despite the passage of time and the potential historical significance of the materials.