When a client leaves, what electronic records must a North Carolina lawyer hand over, and in what format?

Plain-English summary

On Inquiry #1, the opinion explains what a lawyer must give a departing client in the age of electronic records. Rule 1.16(d) requires the lawyer to take reasonably practicable steps to protect the client's interests, including surrendering papers and property to which the client is entitled, and Comment [10] says correspondence received and generated by the lawyer should be released along with anything in the file helpful to successor counsel. The standards for electronic records match those for paper. Using legal judgment under the duty of competence (citing 2002 FEO 5 and RPC 234), the lawyer decides what records belong in the file. Following CPR 3, the file does not include the lawyer's personal notes and incomplete work product, so the lawyer may omit immaterial email, drafting notes in preliminary versions of pleadings, internal notations in a discovery database, and items like backups, voicemail, and text messages, unless any of these would be helpful to successor counsel. If an electronic record is part of the file, the lawyer must provide a copy on termination; if it is not, the lawyer is not required to but may.

On Inquiry #2, the opinion concludes that an organized record-keeping system must include electronic records, organized so they can be searched and compiled for the representation and for release of the file. It recommends a document management system to track records by client and matter, and a procedure for regularly deciding whether to retain a given electronic record, rather than waiting until the client requests the file.

On Inquiry #3, the opinion addresses format. It calls for weighing the lawyer's interest in efficient, cost-effective production against the client's interest in receiving records in a usable format. Paper records may be produced on paper if that is most convenient or least expensive, or converted to electronic format if readily accessible without undue expense; electronic records may be produced electronically without converting them to paper. The lawyer should in most instances bear the reasonable cost of retrieving and producing electronic records, but may charge the client for converting between formats or for unduly burdensome production. Critically, where a paper format would undermine usefulness, such as a spreadsheet without its formulas, a complex discovery database, or a video recording, the record must be provided electronically unless the client requests otherwise. The opinion encourages discussing retention and production format with the client at the outset.

In practice

Under the North Carolina rules as they stood at the time of the opinion, conduct in which a lawyer withholds file records from a departing client, or refuses to provide them in a usable electronic form, is not permitted; the opinion holds Rule 1.16(d) requires surrendering the file, including electronic records, and that usefulness controls format in key cases. Per the opinion, the analysis turns on the lawyer's legal judgment about what belongs in the file: personal notes and incomplete work product may be withheld, but anything helpful to successor counsel must be turned over.

The opinion treats record-keeping as a competence obligation: an organized system must include electronic records searchable for release, and the lawyer should regularly decide what to retain. On cost, the lawyer generally bears reasonable retrieval and production costs but may charge for format conversions or unduly burdensome requests, while records whose usefulness depends on electronic form (spreadsheets with formulas, discovery databases, video) must be produced electronically unless the client asks otherwise.

Common questions

Q: What electronic records must a North Carolina lawyer give a departing client?

A: Opinion #1 says the lawyer must provide the records that are part of the file under Rule 1.16(d), including correspondence and anything helpful to successor counsel, treating electronic records the same as paper; the lawyer may omit personal notes and incomplete work product unless it would help successor counsel.

Q: Can the lawyer withhold drafts, internal notes, or backups?

A: Generally yes. Opinion #1, following CPR 3, says the file does not include the lawyer's personal notes and incomplete work product, so immaterial email, drafting notes, database notations, backups, voicemail, and text messages may be omitted unless they would be helpful to successor counsel.

Q: Does the client get to choose paper or electronic format?

A: Not entirely. Opinion #3 weighs the lawyer's cost interest against the client's usability interest; the lawyer may produce paper records on paper or electronic records electronically, but must provide records electronically where a paper version would destroy their usefulness, such as a spreadsheet's formulas, a discovery database, or video.

Q: Who pays the cost of producing electronic records?

A: Opinion #3 says the lawyer should in most instances bear the reasonable cost of retrieving and producing electronic records, but may charge the client for converting between formats or for production that is unduly expensive or burdensome.

Background and rules framework

The opinion applies North Carolina Rule 1.16(d) (declining or terminating representation, the analogue of Model Rule 1.16(d)), which requires surrendering papers and property to which the client is entitled on termination, and Comment [10]. It reads the duty of competence under Rule 1.1 (and Comment [6]) to require organized record-keeping that includes electronic records.

The opinion relies on prior North Carolina authority, 2002 FEO 5 (retention of email and exercising legal judgment about what to retain), RPC 234 (converting paper to electronic format), and CPR 3 (the file excludes personal notes and incomplete work product), to define the file and govern format.

Citations and references

Rules of Professional Conduct:

• MR 1.16 / NC Rule 1.16(d) (surrendering papers and property on termination; Comment [10])
• MR 1.1 / NC Rule 1.1 (competence; Comment [6], organized record-keeping)

Other opinions cited:

• NC 2002 FEO 5: retention of email in the client's file; legal judgment about what to retain and in what format.
• NC RPC 234: paper documents may be converted to electronic format with safeguards.
• NC CPR 3: the client file does not include the lawyer's personal notes and incomplete work product.

See also

• NY State Bar Op. 1142: Delivering the Client File and Electronic Records
• NY State Bar Op. 1094: Releasing a Client's File
• Alabama Bar Op. 2010-02: Retention, Production, and Destruction of Client Files

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2013-formal-ethics-opinion-15/

Original opinion text

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

Inquiry #1:

In the age of electronic records, what information must be given to a departing client when the client requests the file?

Opinion #1:

Rule 1.16(d) of the Rules of Professional Conduct requires a lawyer, upon termination of representation, to “take steps to the extent reasonably practicable to protect a client’s interests, such as...surrendering papers and property to which the client is entitled...”

Comment 10 to Rule 1.16 specifically provides that copies of “all correspondence received and generated by the withdrawing or discharged lawyer should be released; and anything in the file that would be helpful to successor counsel should be turned over.”

Competent representation includes organized record-keeping practices that safeguard the documentation and information necessary to enable the lawyer to (1) readily retrieve information required for the representation; (2) remain abreast of the status of the case; and (3) be adequately prepared to handle the client’s matter. 2002 FEO 5; Rule 1.1, cmt. [6]. The standards for record-keeping, including record retention, for electronic communications, documents, records, and other information (“records”) are the same as the standards for paper records. As stated in 2002 FEO 5 on the retention of email in a client’s file, “[a] lawyer must exercise his or her legal judgment when deciding what documents or information to retain in a client’s file.” Whether a lawyer should retain an electronic record that relates to a client’s representation “depends upon the requirements of competent representation under the circumstances of the particular case.” Id.

A lawyer must also exercise legal judgment, subject to the duty of competent representation, when deciding which format (electronic or paper) is the most appropriate for the retention of records generated during the representation of a client. 2002 FEO 5; see also RPC 234 (paper documents in client’s file may be converted and saved in an electronic format if original documents with legal significance, such as wills, are stored in a safe place or returned to the client, and documents stored in electronic format can be reproduced in a paper format).

If an electronic record relative to a client’s matter would be helpful to successor counsel, the electronic record is a part of the client’s file. As explained in CPR 3, a client file does not include “the lawyer’s personal notes and incomplete work product,” or “preliminary drafts of legal instruments or other preliminary things which, unexplained, could place a lawyer in a bad light without furthering the interest of his former client.” Therefore, a lawyer may omit from the records that are considered a part of the client’s file the following: (1) email containing the client’s name if the email is immaterial, represents incomplete work product, or would not be helpful to successor counsel; (2) drafting notes saved in preliminary versions of a filed pleading since these are incomplete work product; (3) notations or categorizations on documents stored in a discovery database since these are incomplete work product; and (4) other items that are associated with a particular client such as backups, voicemail recordings, and text messages unless the items would be helpful to successor counsel.

If the lawyer determines that an electronic record is a part of a client’s file, then the lawyer has a duty to provide a copy of the record to the client upon the termination of the representation. Conversely, if the lawyer, in the exercise of legal judgment, determines that the electronic record is not a part of the client’s file, then the lawyer is not required, but may, provide a copy of the electronic record to the client.

Inquiry #2:

Are lawyers required to organize or store electronic records relative to a specific client matter in any particular manner?

Opinion #2:

An organized record-keeping system designed to safeguard client information must include electronic records. See Opinion #1. The electronic records must be organized in a manner that can be searched and compiled as necessary for the representation of the client and for the release of the file to the client upon the termination of the representation. A document management system to track records by client and matter is recommended.

Because of the potential for electronic records to accumulate, one important aspect of an organized record-keeping system is a procedure for regularly exercising legal judgment as to whether to retain an electronic record in the client’s virtual file. Such a procedure would, for example, require the regular identification of emails that should be retained and made a part of the client’s virtual file. Waiting until the representation has ended and the client has requested the file to identify electronic records that are a part of the client’s file may increase the likelihood that an important electronic record will not be identified properly.

Inquiry #3:

When the representation terminates and the client requests the file, is the lawyer or law firm required to provide the records in the format (electronic or paper) requested by the client?

Opinion #3:

Many clients, or successor counsel, will have the technical expertise and financial ability to receive client records in an electronic format without experiencing any problem or undue expense in opening, using, or reproducing the records. These clients will probably prefer to receive the records in an electronic format. However, there are clients, such as individuals or small businesses with limited financial means or technical expertise, that cannot afford to purchase expensive software or computer equipment simply to gain access to the records in their own legal files. There must be a weighing of the interests of the lawyer or law firm in producing the client’s file in an efficient and cost-effective manner against the client’s interest in receiving the records in a format that will be useful to the client or successor counsel.

Therefore, records that are stored on paper may be copied and produced to the client in paper format if that is the most convenient or least expensive method for reproducing these records for the client. If converting paper records to an electronic format would be a more convenient or less expensive way to provide the records to the client, this is permissible if the lawyer or law firm determines that the records will be readily accessible to the client in this format without undue expense. Similarly, electronic records may be copied and provided to the client in an electronic format (they do not have to be converted to paper) if the lawyer or law firm determines that the records will be readily accessible to the client in this format without undue expense. See 2002 FEO 5 (“in light of the widespread availability of computers,” emails may be provided to a departing client in an electronic format even if the client requests paper copies).

A lawyer should in most instances bear the reasonable costs of retrieving and producing electronic records for a departing client. However, a lawyer or law firm may charge a client the expense of providing electronic records if the client asks the lawyer or law firm to do any of the following: (1) convert electronic records from a format that is already accessible using widely used or inexpensive business software applications; (2) convert electronic records to a format that is not readily accessible using widely used or inexpensive business software applications; or (3) provide electronic records in a manner that is unduly expensive or burdensome.

Nevertheless, if the usefulness of an electronic record in a client file would be undermined if the document is provided to the client or successor counsel in a paper format, the record must be provided to the client in an electronic format unless the client requests otherwise. For example, providing a spreadsheet without the underlying formulas or providing a complex discovery database printed in streams of text on reams of paper would destroy the usefulness of such data to both the client and successor counsel. Similarly, a video recording cannot be reduced to a paper format and therefore must be provided to the client in its original format.

Lawyers are encouraged to discuss with a client at the beginning of a representation the records that will be retained as a part of the client’s file, and the format in which the records will be produced at the termination of the representation.