May a Missouri law firm destroy a paper client file after creating a complete electronic copy without client consent?

Plain-English summary

The opinion addressed whether a firm could destroy a client's paper file without consent when it had a complete electronic copy. Formal Opinion 115 and In the Matter of Cupples established that the file belonged to the client, while then-current Rule 4-1.15(j) required ten years of retention unless the lawyer and client agreed otherwise.

Electronic-only storage was permitted if the firm established that the storage medium would remain intact for the full period or periodically migrated the data. The firm also had to ensure that the necessary hardware and software remained available and consult appropriate technology experts when needed.

The firm could not destroy items with intrinsic value or originals whose original form could have legal significance during the representation. The committee encouraged offering the paper file to the client before destruction.

On request, the lawyer had to provide the file in a form the client could access with common, relatively inexpensive technology, or provide paper unless contrary to an agreement. The file itself had to be provided without charge, apart from shipping or delivery.

Currency note

Formal Opinion 127 was issued in 2009 and applied Rule 4-1.15(j) as it then governed client-file retention. Verify the current Missouri rules and any current retention period before relying on its specific timing requirement.

In practice

Under the opinion, electronic storage did not reduce the lawyer's duties concerning client ownership, safekeeping, retention, and delivery. The format could change only if the complete file remained durable and practically accessible throughout the required period.

Common questions

Q: Did the lawyer need client consent to destroy the paper copy?

A: No, if every condition in the opinion was properly addressed.

Q: Could every paper item be destroyed?

A: No. Items of intrinsic value and originals with legal significance had to be preserved.

Q: What if the storage medium would not last ten years?

A: The firm had to migrate the data periodically to maintain integrity.

Q: In what form did the client receive the file?

A: In an electronically accessible form using common, relatively inexpensive technology or in paper form unless an agreement provided otherwise.

Background and rules framework

Formal Opinion 115 and Cupples treated the complete file as client property. Rule 4-1.15(j) supplied the then-current retention period, while the committee applied those duties to electronic media, future technology access, originals, and delivery.

Citations and references

Missouri Rules of Professional Conduct:

• Rule 4-1.15(j)

Cases:

• In the Matter of Cupples, 952 S.W.2d 226, 234 (Mo. banc 1997)

Other opinions cited:

• Missouri Formal Opinion 115, as amended

See also

• Virginia LEO 1818: Electronic-only client files
• Louisiana Public Op. 06-LSBA-RPCC-008: File retention
• Nebraska Ethics Op. 71-6: Safekeeping an original will

Source

• Landing page: Missouri Formal Opinion 127

Original opinion text

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

Advisory Committee of the Supreme Court of Missouri
Formal Opinion 127

SCANNING CLIENT FILES

This opinion addresses the issue of destruction of the client's paper file, without client consent, if the firm has a complete electronic version of the file.

Formal Opinion 115, as amended, states that the file belongs to the client, cover to cover. In the Matter of Cupples, 952 S.W.2d 226, 234 (Mo. banc 1997), reinforces the client's ownership of the file. Rule 4–1.15(j) requires attorneys to maintain the file for a period of ten years, or for such other period as agreed upon with the client. However, no rule or previous opinion addresses the issue of whether the file may be maintained in electronic form.

Several issues must be considered in relation to maintaining the file in electronic form, if the paper file will be destroyed. Will the electronic storage media have integrity for the period the file must be stored? During the period in which the file must be stored, will it be accessible using the hardware and software currently available? Is it permissible to destroy the entire paper file? How will the file be provided to the client? If an attorney properly addresses these issues, it is permissible for a client file to be stored solely in electronic format, without obtaining client consent.

It is not possible to specify the type of electronic media that may be used for file storage. The storage media must be established as having archive quality integrity for the entire period that the file must be stored. Alternatively, the firm must transfer the data to new media, periodically, during the storage period, to ensure the integrity of the data. The firm must also ensure that software and hardware necessary to access the data will be available during the storage period. These issues involve knowledge of technology standards and developments. To the extent necessary, an attorney must consult those with appropriate expertise regarding these aspects of technology.

An attorney may destroy most, but not necessarily all, of the paper file, if the file is stored electronically. Items of intrinsic value may not be destroyed. Originals that may have legal significance, as originals, during the representation may not be destroyed. We encourage firms to offer the paper file to the client prior to destruction.

For purposes of accessing the file, the attorney must have the necessary software and hardware available. However, if the client requests the file, the attorney must provide it to the client in a manner in which the client will be able to access it using commonly used, relatively inexpensive, software and hardware, any time during the ten years the attorney is required to maintain the file or for such other time as the attorney and client have agreed. Alternatively, the attorney may provide the file to the client in paper format, unless that is contrary to an agreement between the attorney and client. During or after the ten year or agreed upon period, the attorney must provide the file to the client without charge, except for shipping or delivery charges.

May 19, 2009