What must a Missouri lawyer do when a flood destroys unsalvageable closed client files and items of intrinsic value?

Plain-English summary

A flood submerged paper files in storage, leaving them rotting, molding, and unsalvageable. The lawyer had no electronic copies, and some files may have held intrinsically valuable items.

Rule 4-1.22 and Formal Opinion 115 treat the complete original client file as client property. The lawyer must identify which files were lost and notify current and former clients because the required retention could no longer be met. Rule 4-1.16(d) also requires reasonably practicable assistance.

Although the damaged files cannot be saved, disposal must preserve confidentiality under Rules 4-1.22 and 4-1.6. A disaster-recovery professional may assist, subject to Rule 4-5.3.

Rule 4-1.22 permits ordinary files to be kept electronically, photographically, or in another reproducible and readily accessible format, but excludes items of intrinsic value. The opinion identifies file redundancy and additional security for intrinsically valuable items as measures addressing future loss.

In practice

Under this opinion, physical destruction does not end file, notice, assistance, or confidentiality duties. The response covers identification, client communication, secure disposal, and preservation planning.

Common questions

Q: Must the lawyer identify and notify affected clients?

A: Yes. The opinion requires identification of the destroyed files and notice to current and former clients.

Q: May moldy files simply be discarded?

A: No. Even unsalvageable material must be disposed of confidentially.

Q: May a disaster-recovery company assist?

A: Yes, subject to the lawyer's Rule 4-5.3 responsibilities.

Q: May client files be maintained electronically?

A: Yes, except items of intrinsic value, if printed copies can be produced and the records remain readily accessible.

Background and rules framework

Rule 4-1.22 governs file ownership, retention, format, and disposal. Rules 4-1.4 and 4-1.16(d) govern notice and assistance, while Rules 4-1.6 and 4-5.3 govern confidential disposal and outside assistance.

Citations and references

Rules of Professional Conduct:

• Missouri Rules 4-1.22, 4-1.4, and 4-1.16(d)
• Missouri Rules 4-1.6(a) and (c), Comments [15] and [16]
• Missouri Rule 4-5.3

Other opinions cited:

• Missouri Formal Opinions 115 and 127
• Missouri Informal Opinions 2021-03, 2020-09, and 2018-09

See also

• Missouri Informal Op. 2025-01: Retirement and Client Files
• Louisiana Ethics Op. 06-RPCC-008: Client-File Retention
• Maine Ethics Op. 143: Files After a Solo Lawyer's Death or Disability

Source

• Landing page: Missouri Informal Opinion 2022-10

Original opinion text

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

Question: Attorney maintains original closed client files in paper format at a local storage facility. Some of those files may have contained items of intrinsic value. Those paper files were severely damaged in a recent natural disaster that resulted in record flooding in the area where the storage unit is located. Files have been submerged in flood waters and are rotting and molding such that the files cannot be salvaged. Attorney does not maintain electronic copies of the closed client files that were in storage. Attorney asked what steps need to be taken under the Rules of Professional Conduct.

Answer: Attorney has an obligation to maintain client files, even those that are closed, in accordance with Rule 4–1.22, as client owns the original file, cover-to-cover, as detailed in Formal Opinion 115, as amended. Attorney must identify which closed files were in the storage facility and notify the clients or former clients as to the destruction of the original file since Attorney is required to maintain those files for the requisite period of time. See Rules 4–1.22 and 4–1.4. Attorney should assist clients or former clients to the extent reasonably practicable. See Rule 4–1.16(d). Since these original files have been lost, as well as items of intrinsic value, Attorney should consider consulting with Attorney’s malpractice insurance provider or private legal counsel for additional guidance. Although the files are unable to be salvaged, they still must be disposed of in a manner that preserves confidentiality in accordance with Rule 4–1.22. Attorney may need to seek the assistance of a professional in disaster recovery to dispose of the damaged client files appropriately and ethically in accordance with Rules 4–1.6 and 4–5.3. See Informal Opinion 2021–03. While Rule 4–1.22 does not specify in what format Attorney must store client files (i.e., paper or electronic), it provides that such files, “except for items of intrinsic value, may be maintained by electronic, photographic, or other media provided that printed copies can be produced. These records shall be readily accessible to the lawyer.” In the future, Attorney may wish to consider implementing redundancy of client files to prevent such a loss, as well as additional security measures over items of intrinsic value. See also Rule 4–1.6 (a) and (c), Comments [15] and [16], Formal Opinion 127, and Informal Opinions 2020–09 and 2018–09.