May a lawyer send closed client files to an outside scanning vendor without each client’s express permission?

Plain-English summary

The lawyer wanted an outside vendor to take closed client files off site for scanning. The question asked whether a confidentiality agreement or advance notice to clients would address Rule 4-1.6(a).

The opinion permits the arrangement without each client’s express permission. It assigns the lawyer responsibility for keeping client information confidential while the vendor possesses the files and calls a confidentiality agreement essential to that process.

In practice

The opinion allows the proposed scanning arrangement while requiring the lawyer to ensure confidentiality in the vendor’s possession. It describes a confidentiality agreement as essential.

Common questions

Q: Is each client’s express permission required?

A: No. The opinion permits the proposed vendor arrangement without express client permission.

Q: What duty does the lawyer retain while files are with the vendor?

A: The lawyer must make sure client information remains confidential while the vendor possesses the files.

Q: What does the opinion say about a confidentiality agreement?

A: It calls such an agreement an essential part of protecting client information during the vendor’s possession.

Background and rules framework

The question cites Rule 4-1.6(a) on confidentiality. The answer focuses on protection of the files while they are held by the outside vendor.

Citations and references

Missouri Rules of Professional Conduct:

• Rule 4-1.6

See also

• Missouri Informal Op. 2021-13: Metadata Confidentiality
• Missouri Informal Op. 2017-02: Assistant Confidentiality Breach

Source

• Landing page: https://mo-legal-ethics.org/informal-opinion/20070008/

Original opinion text

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

QUESTION: Attorney electronically scans closed files to store them. All clients are aware of this practice. Attorney has been approached by a third party vendor to contract with Attorney to perform scanning for them. The vendor would take the files off-site to scan them. Would the proposed relationship with the third party vendor violate Rule 4–1.6(a) if the third party vendor executes a confidentiality agreement? If the clients are advised of the third party scanning and given an opportunity to object would this be considered consent under Rule 4–1.6(a)?

ANSWER: It is permissible for Attorney to enter into such an arrangement, without the express permission of Attorney’s clients. Attorney has the obligation to make sure that clients’ information remains confidential while it is in the vendor’s possession. A confidentiality agreement would be an essential part of that process. Attorney may also want to contact Attorney’s malpractice carrier for advice on this issue.