Must a North Carolina lawyer keep client emails in the file, and on termination can the lawyer return them electronically instead of as paper copies?

Plain-English summary

A lawyer represented a client in a custody matter for 18 months, exchanging email with the client sometimes daily on routine issues. The opinion answers four questions about retaining those emails and returning them when the representation ends.

On whether emails must be retained, the opinion concludes the lawyer must exercise legal judgment about what to keep in a client's file, and whether to retain a given email (or any written communication) depends on the requirements of competent representation in the particular case (Rule 1.1). Competent representation includes organized record-keeping so the lawyer stays current on the case (Rule 1.1, cmt. [5]) and may require keeping enough documentation to protect the client's interests, assist successor counsel, and protect the lawyer if the representation is later questioned (Rule 1.16(d), cmt. [11]).

On storage format, the opinion concludes the lawyer must again exercise legal judgment, subject to the competence duty, in choosing the most appropriate format, and may store communications electronically (citing RPC 234, which permits storing inactive client files electronically). On producing emails when the client requests the file, the opinion concludes that, under Rule 1.16(d), the lawyer must surrender papers and property to which the client is entitled, and (per CPR 3) must give the client copies of documents that may help successor counsel, except personal notes and unfinished work product; retained emails are provided along with the rest of the file subject to those limits. On whether the lawyer may deliver emails on a disk or other electronic format even when the client asks for paper, the opinion concludes yes: given the widespread availability of computers, providing the emails electronically meets Rule 1.16(d)'s "reasonably practicable" standard.

In practice

Under the North Carolina rules as they stood at the time of the opinion, the analysis turns on the competence duty for record-keeping and the file-surrender duty on termination. The opinion holds that retention of any particular email is a case-specific judgment under Rule 1.1, and that retained emails may be stored and returned in electronic form.

Per the opinion, on termination the lawyer must provide the client with copies of retained emails alongside the rest of the file, subject to the CPR 3 limits (no personal notes or unfinished work product), and may satisfy that duty by delivering the emails electronically, such as on a computer disk, even over the client's request for paper.

Common questions

Q: Does a lawyer have to keep every client email?

A: No. The opinion concludes whether to retain an email is a legal judgment tied to competent representation under Rule 1.1 in the circumstances of the particular case.

Q: Can the lawyer store client emails electronically rather than printing them?

A: Yes. The opinion concludes the lawyer exercises judgment about the most appropriate storage format and may store communications electronically, citing RPC 234.

Q: When the client wants the file, must the lawyer hand over the emails?

A: The lawyer must provide copies of retained emails along with the rest of the file under Rule 1.16(d), subject to the CPR 3 limits excluding personal notes and unfinished work product.

Q: Can the lawyer return the emails on a disk even if the client asked for paper copies?

A: Yes. The opinion concludes that, given the availability of computers, providing the retained emails electronically (such as on a disk) satisfies Rule 1.16(d)'s "reasonably practicable" standard.

Background and rules framework

The opinion interprets Rule 1.1 (competence, including record-keeping; comment [5]) and Rule 1.16(d) (protecting the client's interests on termination, including surrendering papers and property; comment [11]), corresponding to Model Rules 1.1 and 1.16. It applies the prior North Carolina opinions RPC 234 (electronic storage of inactive files) and CPR 3 (documents to be given to the client on termination).

Citations and references

Rules of Professional Conduct:

• MR 1.1 / NC Rule 1.1 (competence; record-keeping), cmt. [5]
• MR 1.16 / NC Rule 1.16(d) (surrendering papers and property on termination), cmt. [11]

Other opinions cited:

• NC RPC 234: permits storing inactive client files in electronic format.
• NC CPR 3: on termination, the lawyer must give the client documents that may help successor counsel, except personal notes and unfinished work product.

See also

• NC State Bar 2013 FEO 15: Return of Electronic Records to a Client on Termination
• NC State Bar 2008 FEO 5: Web-Based Management of Client Records
• NC State Bar 98 FEO 9: Charging for the Cost of Retrieving a Closed Client File

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2002-formal-ethics-opinion-5/

Original opinion text

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

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Attorney represented Client in a domestic matter for 18 months. Attorney and Client exchanged e-mail messages, sometimes on a daily basis, regarding routine issues arising in Client's custody matter. Should the e-mail messages be retained, in either an electronic or paper format, as a part of Client's legal file?

A lawyer must exercise his or her legal judgment when deciding what documents or information to retain in a client's file. Whether the lawyer should retain an e-mail communication, or any other written communication or document, in a client's file depends upon the requirements of competent representation under the circumstances of the particular case. Rule 1.1. Competent representation includes organized record-keeping practices that safeguard documentation and information so that the lawyer remains abreast of the status of the case, and is adequately prepared to handle the client's matter. See Rule 1.1 cmt. [5]. Competent representation may also require the lawyer to retain sufficient documentation to protect the client's interests, to provide assistance to successor counsel, and to protect the lawyer in the event the representation of the client is ever questioned. See generally Rule 1.16(d) and cmt. [11].

Attorney decides that an e-mail communication should be retained. The communication may be stored in electronic format (on the computer or by downloading the communication to a computer disk) or in a paper format by printing the communication. May Attorney store the communication in an electronic format or should it be printed to create a hard copy?

A lawyer must also exercise legal judgment, subject to the duty of competent representation, when deciding which format is the most appropriate for storing communications, documents, and information generated during the representation of a client. See, e.g. , RPC 234 (permitting the storage of inactive client files in an electronic format).

Upon termination of the representation, Client requests her file. What is Attorney's duty with regard to production of e-mail communications generated during Client's representation?

Rule 1.16(d) states that, upon termination of a representation, a lawyer shall take steps as reasonably practicable to protect the client's interests, including "surrendering papers and property to which the client is entitled." CPR 3 ruled that, when a representation is terminated, the lawyer must give the client a copy of any document in the client's file that may be helpful to successor counsel except personal notes and unfinished work product. If a lawyer determines that an e-mail communication (whether in electronic format or hard copy) should be retained as a part of a client's file, at the time of the termination of the representation, the lawyer should provide the client with a copy of the retained e-mail communication, together with the other documents in the client's file, subject to the limitations set forth in CPR 3.

Attorney saved e-mail communications relating to Client's case in a file on his computer. Converting the e-mail communications to a paper format will be expensive and time-consuming. Upon the termination of the representation, may Attorney give Client a computer disk containing the e-mail communications (or transmit them to Client in some other electronic format) even if Client specifically requests paper copies of the e-mail communications?

Yes. Rule 1.16(d) requires the lawyer to take "reasonably practicable" steps to protect the interests of the client upon termination. In light of the widespread availability of computers, this standard is met if Attorney provides Client with a computer disk containing the retained e-mail communications or otherwise transmits them to Client in an electronic format.