May a Missouri lawyer hire an outside shredding company to destroy closed client files?

Plain-English summary

The opinion permits a lawyer to use an outside shredding company for closed client files only after the files have been retained for the period required by Rule 4-1.22 and are deemed abandoned. Items of intrinsic value must be removed first.

Destruction is also unavailable when the lawyer knows or reasonably should know of a pending malpractice claim, criminal or governmental investigation, Rule 5 complaint, or other litigation related to the representation. Rule 4-1.22 requires destruction in a manner that preserves confidentiality.

Under Rule 4-5.3, the lawyer must make reasonable efforts to ensure that the vendor's conduct is compatible with the lawyer's professional obligations. The opinion identifies the vendor's education, experience, reputation, services, contractual protections, and legal and ethical environment as relevant circumstances. It says a confidentiality agreement may help satisfy those obligations.

The lawyer can also be responsible for vendor misconduct under Rule 4-5.3(c) when the lawyer orders or knowingly ratifies it, or when a lawyer with managerial or supervisory authority knows of misconduct in time to avoid or mitigate its consequences but fails to take reasonable remedial measures.

In practice

Under this opinion, outsourcing file destruction does not transfer the lawyer's confidentiality and supervisory duties. The permission depends on completing the Rule 4-1.22 screening and using reasonable Rule 4-5.3 measures in selecting, instructing, and overseeing the vendor.

Common questions

Q: May a Missouri lawyer use an outside shredding company for closed files?

A: Yes, if the Rule 4-1.22 conditions are satisfied and the vendor destroys the files in a way that preserves confidentiality.

Q: What must be removed before destruction?

A: The opinion requires removal of items with intrinsic value.

Q: When must the file not be destroyed?

A: Destruction is unavailable when the lawyer knows or reasonably should know of a pending malpractice claim, criminal or governmental investigation, Rule 5 complaint, or other litigation related to the representation.

Q: Is a confidentiality agreement mandatory?

A: The opinion does not make one mandatory. It says the lawyer may consider an agreement to help ensure the vendor meets the lawyer's professional obligations.

Q: Can the lawyer be responsible for the vendor's misconduct?

A: Yes. Rule 4-5.3(c) imposes responsibility in the circumstances the opinion describes, including ordering or knowingly ratifying misconduct and failing to take available remedial measures.

Background and rules framework

Rule 4-1.22 governs abandonment, retention, screening, and confidential destruction of client files. Rules 4-1.6 and 4-5.3 govern confidentiality and supervision of the outside nonlawyer vendor.

Citations and references

Rules of Professional Conduct:

• Missouri Rules 4-1.6, 4-1.22, 4-5.3, 4-5.3(b), 4-5.3(c)(1), and 4-5.3(c)(2)
• Missouri Rule 4-5.3 Comment [3]

Other opinions cited:

• Missouri Informal Opinions 20070008 and 20050068

See also

• Louisiana Op. 06-RPCC-008: Client File Retention
• Arizona Ethics Op. EO-19-0009: Client File Retention Duties
• Utah Ethics Op. 96-02: Client File Retention

Source

• Landing page: Missouri Informal Opinion 2021-03

Original opinion text

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

Question: Attorney proposes to enter into a contract with a shredding company for regular collection and disposal of closed client files. Attorney is concerned about preserving confidentiality in doing so. May Attorney use an outside shredding company to dispose of closed files?

Answer: Provided Attorney has held the client files for the required period of time pursuant to Rule 4–1.22 such that the files are deemed abandoned by the clients, items of intrinsic value have been removed, and Attorney does not know or reasonably should know of the pendency of a malpractice claim, criminal or other governmental investigation, complaint under Rule 5, or other litigation related to the representation, Attorney may engage a shredding company vendor to dispose of closed files consistent with Rule 4–5.3. Rule 4–1.22 states that “[t]he file shall be destroyed in a manner than preserves confidentiality.” Attorney should select a vendor that will destroy the file in a manner to ensure confidentiality. Attorney should select a vendor in accordance with Attorney’s supervisory responsibilities pursuant to Rule 4–5.3, as Attorney is required to make reasonable efforts to ensure that the vendor’s conduct is compatible with the professional obligations of Attorney, in this case making sure that the shredding company is able to preserve confidentiality of the files in the destruction process in accordance with Attorney’s responsibilities under Rules 4–1.22 and 4–1.6. Rule 4–5.3(b). Rule 4–5.3, Comment [3] provides guidance on use of vendors such as a shredding company and states: “When using such services outside the firm, a lawyer must make reasonable efforts to ensure that the services are provided in a manner that is compatible with the lawyer’s professional obligations. The extent of this obligation will depend upon the circumstances, including the education, experience and reputation of the nonlawyer; the nature of the services involved; the terms of any arrangements concerning the protection of client information; and the legal and ethical environments of the jurisdictions in which the services will be performed, particularly with regard to confidentiality.…When retaining or directing a nonlawyer outside the firm, a lawyer should communicate directions appropriate under the circumstances to give reasonable assurance that the nonlawyers conduct is compatible with the professional obligations of the lawyer.” Attorney may consider use of a confidentiality agreement to assist with ensuring those professional obligations are met. See Informal Opinions 20070008; 20050068. Further, Attorney is responsible for the conduct of the vendor that would be a violation of the Rules if engaged in by Attorney if Attorney orders or ratifies the conduct with knowledge of the specific conduct. Rule 4–5.3(c)(1). Similarly, Attorney is responsible for the conduct of the outside vendor related to the files subject to agreement with Attorney that would be a violation of the Rules if engaged in by Attorney if Attorney is a partner, has comparable managerial authority, or direct supervisory authority, and knows of such conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial measures. Rule 4–5.3(c)(2).