If a lawyer keeps a client's file electronically, must they print it on request, and who pays?

Plain-English summary

A litigation firm keeps most documents in electronic form and usually gives a former client a link to a secure, password-protected cloud folder. A former client now incarcerated on a criminal matter asks the firm to send a printed copy of the electronic file to his spouse. The firm holds no hard-copy documents for this client and says printing would be expensive. The questions are how far the lawyer must provide the file in the form requested, and whether the lawyer may charge for printing and mailing.

The committee sets out three settled principles. First, except where originals have particular evidentiary value (wills, deeds, contracts, promissory notes), a lawyer need not keep the file in any particular form and may keep electronic copies (N.Y. State 940; N.Y. County 725); cloud storage is permissible with reasonable safeguards (N.Y. State 1020). Second, a former client is presumptively entitled to the file (Sage Realty; N.Y. State 766), and Rule 1.15(c)(4) requires the lawyer to deliver property the client is entitled to receive. Third, the lawyer may generally charge the reasonable fees and expenses of assembling and delivering those documents (Sage Realty), though a copy the lawyer keeps for its own protection is at the lawyer's expense (N.Y. State 780).

Applying these, the committee concludes that where the client cannot read electronic documents (as an incarcerated client may not be able to), the lawyer should make reasonable efforts to transmit the file in an accessible form, because the client is entitled to the information, not just the medium. But the lawyer need not bear the printing cost. Under Sage Realty, the costs of assembling and delivering documents are chargeable to the client, and preparing electronic documents for delivery is analogous (N.Y. City 2008-1). The committee notes a different answer might apply where the firm was already paid for a hard copy, or where the lawyer was court-appointed for an indigent client, neither of which is presented here.

In practice

Under this opinion, a lawyer who stores a client's file electronically must, on request, take reasonable measures to deliver it in a form the client can actually use, which may mean printing it for a client who cannot access the electronic version. The lawyer may charge the client the reasonable costs of printing and delivering the paper copy, treating those as assemblage-and-delivery costs under Sage Realty and Rule 1.15(c)(4). The committee flagged, without deciding, that the result could differ where the firm was already paid for a hard copy or where the client was indigent and the lawyer was court-appointed.

Common questions

Q: Must a lawyer print an electronic file when the client asks for paper?

A: The lawyer must take reasonable measures to deliver the file in a form the client can access. Where the client cannot use the electronic version, that can mean printing it (Opinion 1142 ¶ 8).

Q: Who pays for the printing?

A: The client. The committee treats printing and delivery as chargeable assemblage-and-delivery costs under Sage Realty, analogous to assembling paper documents (¶ 9).

Q: Does the lawyer have to keep the file in paper form?

A: No. Except for documents with particular evidentiary value, a lawyer may keep electronic copies, including in the cloud with reasonable safeguards (¶ 5).

Background and rules framework

The opinion applies Rule 1.15 (Model Rule 1.15), particularly Rule 1.15(c)(4) on promptly delivering property the client is entitled to receive, read against the Court of Appeals' decision in Sage Realty Corp. v. Proskauer Rose on a client's entitlement to the file and the chargeability of assemblage and delivery.

Citations and references

Rules of Professional Conduct:

• New York Rule 1.15(c)(4) (Model Rule 1.15): delivering property the client is entitled to receive

Cases:

• Sage Realty Corp. v. Proskauer Rose Goetz & Mendelsohn, 91 N.Y.2d 30 (1997): client's entitlement to the file; chargeable assemblage and delivery

Other opinions cited:

• N.Y. State 940 (2012); N.Y. County 725 (1998): electronic copies may replace paper originals
• N.Y. State 1020 (2014): cloud storage with reasonable safeguards
• N.Y. State 766 (2003): former client's entitlement to the file
• N.Y. State 780 (2004); N.Y. City 2008-1: who bears copying and retrieval costs

See also

• NY State Bar Op. 1133: Soliciting clients whose files a lawyer holds as custodian
• NY State Bar Op. 1164: Destroying client files on request and reasonable conditions
• NY State Bar Op. 1143: Referee foreclosure funds in an IOLA account

Source

• Landing page: https://nysba.org/ethics-opinion-1142/