NYC-BAR June 22, 2015

If a fire, flood, or other accident destroys client files, does a lawyer have to tell the clients?

Short answer: Often yes. The opinion concludes that when destruction of a file compromises competent and diligent representation, the lawyer must take reasonable steps to reconstruct it or notify the client if unable; and the lawyer must notify a current or former client whenever the accident compromises the security of the client's confidential information.

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This page answers the general question as of 2015. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.

View original ethics opinion (PDF)

Plain-English summary

The opinion addresses a lawyer's ethical obligations when client files are destroyed in an accident or disaster (for example a fire or flood). The committee concludes that a lawyer may have a duty to notify both current and former clients, and frames the analysis around two distinct concerns: the lawyer's ability to keep representing the client competently and diligently, and the security of the client's confidential information.

On the first concern, where destruction of a file compromises the lawyer's ability to provide competent and diligent representation, the lawyer must take reasonable steps to reconstruct the file sufficiently to continue providing that representation, or must notify the client if the lawyer is unable to reconstruct it. The committee notes that whether notice is required can depend on factors such as whether the client already received copies of the files (either at the conclusion of the matter or while it was ongoing), which may bear on whether reconstruction is feasible or notice is necessary.

On the second concern, the lawyer must notify a current or former client if the accident or disaster compromises the security of the client's confidential information. The committee grounds these duties in the competence and diligence rules (Rules 1.1 and 1.3), the communication rule (Rule 1.4), the safekeeping-of-property rule (Rule 1.15), and the rule on protecting client interests on termination (Rule 1.16).

In practice

Under this opinion, conduct following accidental destruction of client files is governed, as the rules stood at the time, by a duty that turns on impact. The opinion holds that if the loss compromises competent and diligent representation, the lawyer must reasonably reconstruct the file or, failing that, notify the client; and that the lawyer must notify current or former clients whenever the event compromises the security of their confidential information. The opinion treats factors such as whether the client already holds copies of the file as relevant to whether reconstruction or notice is required.

Common questions

Q: A flood destroyed an active client's file. Do I have to tell them?

A: The opinion holds that if the destruction compromises your ability to represent the client competently and diligently, you must take reasonable steps to reconstruct the file, and if you cannot, you must notify the client.

Q: What about former clients whose files were destroyed?

A: The opinion extends the notification duty to former as well as current clients, particularly where the security of the client's confidential information has been compromised.

Q: Does it matter that the client already has copies of the file?

A: The opinion treats whether the client received copies (at the end of the matter or during it) as a relevant factor in deciding whether reconstruction is feasible and whether notice is required.

Q: What if confidential information was exposed, not just lost?

A: The opinion holds the lawyer must notify the current or former client whenever the accident or disaster compromises the security of the client's confidential information.

Background and rules framework

The opinion interprets New York Rules of Professional Conduct 1.1 (competence; Model Rule 1.1) and 1.3 (diligence; Model Rule 1.3), the communication duty in Rule 1.4 (Model Rule 1.4), the safekeeping duty in Rule 1.15 (Model Rule 1.15), and the duty to protect a client's interests in Rule 1.16 (Model Rule 1.16).

Citations and references

Rules of Professional Conduct:

Model Rule 1.1 / NY RPC 1.1 (competence)
Model Rule 1.3 / NY RPC 1.3 (diligence)
Model Rule 1.4 / NY RPC 1.4 (communication)
Model Rule 1.15 / NY RPC 1.15 (safekeeping property and records)
Model Rule 1.16 / NY RPC 1.16 (protecting client interests)

Source

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