Can a law firm scan signed retainer agreements and destroy the paper originals?

Plain-English summary

A high-volume firm that receives thousands of signed retainer agreements each year asked whether it may scan each agreement into the firm's computer system and then destroy the original signed paper (¶ 1).

The committee worked from Rule 1.15(d)(1), which requires lawyers to keep certain records for seven years. For some categories the rule requires only "copies"; for others (certain bank records) it requires the records themselves with no reference to copies (¶ 2). Retainer agreements fall in the "copies" category under Rule 1.15(d)(1)(iii). Rule 1.15(d)(3) defines what satisfies the "copies" requirement: original records, photocopies, microfilm, optical imaging, or any other medium that preserves an image that "cannot be altered without detection" (¶¶ 4-5).

The firm worried that a scanned image might be alterable without detection. The committee read Rule 1.15(d)(3) to mean that the "cannot be altered without detection" condition applies only to media other than the four specifically listed forms. Because scanning is a form of optical imaging, one of the listed forms, it satisfies the rule even without special tamper-evidence measures (¶ 7). Drawing on N.Y. State 680 (1996), the committee acknowledged that both electronic and paper records can be altered, yet had already concluded that records for which "copies" are permitted may be stored as computer images (¶ 6). It added two cautions: the saved record must be a faithful "copy" of the original, and the storage system must reliably maintain that copy for the full seven years (¶ 8). It concluded the firm may destroy the originals after scanning, provided it keeps the images for the retention period (¶ 9).

In practice

Under the New York rules as they stood at the time of the opinion, the committee held that retainer agreements are records for which only "copies" must be kept, and that a scanned image is an acceptable copy. The opinion is specific to retainer (and compensation) agreements and to records in the "copies" category; it expressly distinguishes records the rule requires to be kept in original form, where the same destruction would not be permitted (¶¶ 2-3). The committee's two cautions, fidelity of the copy and reliability of the storage for seven years, track Rule 1.15(d)(3)'s text rather than adding new requirements.

Common questions

Q: Can a firm throw away paper retainer agreements after scanning them?

A: Yes, for retainer and compensation agreements. The opinion concludes these are "copies" records under Rule 1.15(d)(1)(iii), so a scanned image satisfies the rule and the original may be destroyed if the image is kept for seven years (¶¶ 4, 9).

Q: Does the scanning system need to be tamper-proof?

A: No. The committee read the "cannot be altered without detection" requirement as applying only to media other than the four listed forms; scanning is optical imaging, a listed form, so it satisfies the rule without special anti-tampering measures (¶ 7).

Q: How long must the scanned copies be kept?

A: Seven years after the events the records reflect, the retention period Rule 1.15(d) sets, and the storage system must be reliable enough to preserve them for that period (¶¶ 2, 8).

Background and rules framework

The opinion interprets New York Rule of Professional Conduct 1.15(d) (required bookkeeping records and their retention), which corresponds to the record-keeping component of ABA Model Rule 1.15. The analysis turns on the distinction within Rule 1.15(d)(1) between records for which "copies" suffice and records that must be retained as such, and on the definition of acceptable "copies" in Rule 1.15(d)(3).

Citations and references

Rules of Professional Conduct:

• MR 1.15 / NY RPC 1.15(d)(1), (d)(3) (record retention; what satisfies the "copies" requirement)

Other opinions cited:

• N.Y. State 680 (1996): electronic storage of records for which copies are permitted
• N.Y. State 950 (2012): storing mail electronically rather than on paper
• N.Y. State 940: obligation to retain certain documents in original form

See also

• NY State Bar Op. 1094: Releasing a client's file to former counsel
• NY State Bar Op. 1079: Billing for an uncertified paralegal

Source

• Landing page: https://nysba.org/ethics-opinion-1077/