How many years of conflict-checking data must a law firm migrate when it changes conflicts software?

Plain-English summary

A law firm maintaining its conflict-checking data electronically learned that its software vendor would stop supporting the system, and that converting the data to a new program would cost more for each additional year of data converted. The firm asked how far back it must convert the data for conflict-checking purposes.

The opinion starts from the principle that a lawyer's duties of confidentiality and conflict-avoidance continue indefinitely after a representation ends, even after a client's death (Rule 1.6; Rule 1.9, cmt. [1]; RPC 209). At the same time, the requirements for complying with those duties must be reasonable. The committee has applied a "reasonable care" standard to confidentiality (RPC 133, RPC 215), and Comment [3] to Rule 1.7 calls for "reasonable procedures" to identify conflicts.

The opinion concludes that each firm must decide what conflict-checking procedures are reasonable in light of variables such as firm size, type of practice, the cost of maintaining records over time, and the risk of missing a conflict. As a minimum standard of reasonable care, the firm must convert at least the last six years of conflict-checking data to the new program (drawing the six-year benchmark from RPC 209). The firm need not convert data it maintains in another searchable format, and should check with its malpractice carrier, which may impose different requirements.

In practice

The opinion holds that, under the North Carolina rules as they stood at the time, a firm migrating to new conflicts software meets the minimum standard of reasonable care by converting at least six years of conflict-checking data, while the underlying duties of confidentiality and conflict-avoidance run indefinitely. The opinion frames the six-year figure as a floor tied to the reasonable retention period in RPC 209, leaves the broader question of reasonable procedures to each firm's circumstances, and points firms to their malpractice carriers, which may require more.

Common questions

Q: How far back must a firm convert conflict-checking data when switching software?

A: Per the opinion, at least the last six years, as a minimum standard of reasonable care drawn from RPC 209.

Q: Do conflicts and confidentiality duties ever expire?

A: No. The opinion states these duties continue indefinitely, even after a client's death, citing Rule 1.6, Rule 1.9 cmt. [1], and RPC 209.

Q: Does the firm have to convert data it already keeps in another format?

A: No. The opinion says the firm need not convert data maintained in another format, such as an index-card system, so long as it has some means of searching that data for conflicts.

Background and rules framework

The opinion interprets North Carolina Rules of Professional Conduct 1.6 (confidentiality), 1.7 (current-client conflicts; "reasonable procedures" in Comment [3]), and 1.9 (duties to former clients), against the reasonableness backdrop of Rule 0.2 (Preamble: Scope). These correspond to ABA Model Rules 1.6, 1.7, and 1.9. It relies on prior NC opinions RPC 209 (file retention; indefinite record of destroyed files), RPC 133, and RPC 215, and on ABA Informal Op. 1384.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.6 / NC Rule 1.6 (confidentiality)
• Model Rule 1.7 / NC Rule 1.7 (current-client conflicts; reasonable procedures)
• Model Rule 1.9 / NC Rule 1.9 (duties to former clients)
• NC Rule 0.2 (Preamble: Scope; reasonableness)

Other opinions cited:

• RPC 209 (closed-file retention; indefinite record of destroyed files)
• RPC 133; RPC 215 (reasonable care standard for confidentiality)
• ABA Informal Op. 1384 (1977) (preserving an index of destroyed files)

See also

• ABA Formal Op. 512: Generative AI Tools
• NC State Bar 2024 FEO 1: AI in Law Practice

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2009-formal-ethics-opinion-9/

Original opinion text

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

Inquiry:

For the past several years Law Firm has maintained information with regard to current and former representations in electronic form on its computer network and used software tools in order to query such data to determine whether prospective engagements would involve a conflict of interest. Law Firm has learned that its current software provider will no longer provide support for the conflict checking system. A new software provider will convert the data to a new, fully supported program for a certain dollar amount per year of data converted. With each additional year that the software provider is required to retrieve the data, the expense of the conversion goes up exponentially. For what period of time is Law Firm required to convert the data necessary for conflict checking purposes?

Opinion:

After termination of a client-lawyer relationship, a lawyer has continuing duties with respect to confidentiality and conflicts of interest. See Rule 1.6; Rule 1.9, cmt. [1]. These duties continue indefinitely, even after a client's death. See RPC 209. For example, in RPC 209, the Ethics Committee determined that, although six years is a reasonable amount of time for maintaining a closed client file, a law firm must indefinitely maintain a record of all destroyed client files. Similarly, the American Bar Association has opined that a lawyer should preserve, "perhaps for an extended time," an index or identification of destroyed client files. ABA Comm. on Ethics and Prof'l Responsibility, Informal Op. 1384 (1977).

Despite the indefinite duration of the duties with respect to confidentiality and conflicts, the requirements for complying with these duties must be reasonable. See Rule 0.2, Preamble: Scope. The Ethics Committee has previously adopted the standard of "reasonable care" in addressing a lawyer's duty to maintain client confidences. See RPC 133, RPC 215. Likewise, comment [3] to Rule 1.7 specifically provides that a law firm should adopt "reasonable procedures" in order to determine whether a conflict of interest exists.

Every law firm must make its own determination as to what conflict checking procedures are reasonable, taking into account such variables as the size of the law firm, the type of practice, the cost of maintaining conflict checking records over a period of time, and the risk of failing to discover an existing conflict of interest. Regardless of the amount of time that conflict checking information is maintained, lawyers have a duty to avoid any known conflicts and to address conflicts made known to them by opposing or third parties.

As a minimum standard for what constitutes reasonable care, the law firm must convert conflict checking data for at least the last six years to the new program. RPC 209. The law firm does not need to convert conflict checking data that is maintained in some other format by the law firm, i.e., index card filing system, so long as the firm has some means of searching the data for conflicts. The law firm should check with its malpractice carrier to determine whether the carrier has different requirements.