Must a lawyer keep client emails and electronic documents, and can the lawyer charge the client to retrieve and produce them?

Plain-English summary

The opinion extends the committee's earlier guidance on paper files (ABCNY Formal Op. 1986-4) to emails and other electronic documents. It treats the lawyer's "file" as the collection of documents relating to a representation regardless of form, and concludes that the same retention duties apply to electronic documents as to paper.

On retention, the lawyer is not required to organize electronic documents in any particular way or to use any particular storage medium, so long as the chosen approach does not detract from competent representation or cause the loss of documents the client may later need and reasonably expect to be preserved. The committee flags a practical problem with email: some systems auto-delete messages, so the lawyer must take affirmative steps to save emails the lawyer decides to keep, and unorganized email can be expensive to retrieve later.

On client access, the committee applies Sage Realty Corp. v. Proskauer Rose, under which a client is presumptively entitled to full access to the lawyer's file on a represented matter when no fee claim is outstanding. Two exceptions survive: documents whose disclosure would violate a duty to a third party or law, and internal law-office documents (for example, a lawyer's preliminary impressions or staffing notes) unlikely to be useful to the client or a successor. Emails meeting that internal-use description are likewise outside the presumptive right of access, as are inconsequential third-party emails like one confirming a deposition time.

On cost, the committee concludes the lawyer may charge the client, under the lawyer's customary fee schedule, for the reasonable costs of retrieving electronic documents from storage media and reviewing them to determine the client's right of access. Reasonableness depends on the circumstances: charging for an outside vendor to recover documents on an older medium may be reasonable, but a lawyer cannot shift to the client the extra costs caused by the lawyer's own failure to use available, cost-effective organizing technology. The committee declines to set a bright-line rule and suggests lawyer and client discuss retention, storage, retrieval, and any related fees at the outset, perhaps in the engagement letter.

In practice

The opinion was issued in 2008 under the former New York Code, which the New York Rules of Professional Conduct replaced effective April 1, 2009; the file-return and fee analysis maps onto current Rules 1.16, 1.15, and 1.5. Under the framework as it stood at the time, the opinion holds that a lawyer who lets emails the client may need be auto-deleted, or who fails to organize electronic documents and then bills the client for avoidable retrieval costs, is acting inconsistently with the opinion's guidance. It treats an up-front engagement-letter discussion of electronic-document retention, storage, retrieval, and fees as a way for lawyer and client to make informed decisions.

Common questions

Q: Do client emails count as part of the file the client can get?

A: Yes. The opinion treats the file as including electronic documents, so a client's presumptive right of access under Sage Realty extends to emails, subject to the same narrow exceptions that apply to paper.

Q: Can a lawyer let an email system auto-delete client emails?

A: Not for emails the client may later need and reasonably expect to be kept; the opinion says the lawyer must take affirmative steps to preserve those.

Q: Can the lawyer charge the client to produce electronic documents?

A: Yes, a reasonable charge under the lawyer's customary fee schedule for retrieving and reviewing them, but not for extra costs caused by the lawyer's own failure to organize documents using available technology.

Q: Which emails does the client have no presumptive right to see?

A: Internal law-office emails unlikely to be useful to the client or a successor (for example, preliminary analysis or task instructions), and inconsequential third-party emails such as one confirming a deposition's start time.

Background and rules framework

The opinion interprets the former New York Code's file-return and fee provisions, DR 2-110 (delivering papers and property on withdrawal), DR 9-102(C)(4) (delivering property the client is entitled to receive), DR 2-106 (fees), and DR 4-101 (confidences and secrets), against the backdrop of Sage Realty. These correspond to Model Rules 1.16(d) (returning the file on termination), 1.15 (safekeeping property), 1.5 (reasonable fees), and 1.6 (confidentiality), with the Model Rule 1.0(n) definition of "writing" as including an electronic record.

Citations and references

Rules of Professional Conduct:

• MR 1.16(d) / NY DR 2-110 (delivering papers and property on termination)
• MR 1.15 / NY DR 9-102 (safekeeping and delivery of client property)
• MR 1.5 / NY DR 2-106 (reasonable fees)
• MR 1.6 / NY DR 4-101 (confidentiality); MR 1.0(n) ("writing" includes an electronic record)

Cases:

• Sage Realty Corp. v. Proskauer Rose Goetz & Mendelsohn LLP, 91 N.Y.2d 30 (1997), presumptive client access to the file and its exceptions
• Bronx Jewish Boys v. Uniglobe, Inc., 166 Misc. 2d 347 (Sup. Ct. 1995), the file belongs to the client subject to a retaining lien

Other opinions cited:

• ABCNY Formal Op. 1986-4 (paper-file retention); N.Y. State 460 (1977); N.Y. State 623 (1991); N.Y. State 780 (2004)
• ABA Informal Op. 1384 (1977); Cal. State Bar Formal Op. 2007-174

See also

• NYC Bar Ethics Op. 2010-01: Engagement Letters Authorizing Return or Destruction of Client Files
• NYC Bar Ethics Op. 2015-6: Duty to Notify Clients When Their Files Are Accidentally Destroyed
• NY State Bar Op. 1077: Scanning and Destroying Original Retainer Agreements

Source

• Landing page: https://www.nycbar.org/reports/formal-opinion-2008-01-a-lawyers-ethical-obligations-to-retain-and-to-provide-a-client-with-electronic-documents-relating-to-a-representation/
• Original PDF: https://www.nycbar.org/wp-content/uploads/2023/05/20071606-Formal_Opinion_2008-1_Retain_and_Provide_Client_with_Electronic_Docs.pdf