NYSBA 2019-03-21

Must a lawyer delete backup copies of a former client's data on request, and can the lawyer first require a release or indemnity?

Short answer: The opinion concludes a lawyer generally may keep copies of client-owned documents, but that interest can yield to a legitimate destruction request (here, a settlement requiring it); the lawyer may reasonably condition destruction on a release and a simple hold-harmless from the former client and keep an inventory, but should not insist on broader indemnity or conditions from non-clients.

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 Not binding precedent.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 at the bottom of this page) is the authoritative source for any reliance.

NYSBA Ethics Opinion 1164: Destroying Client Files on Request and Conditions on Compliance

Short answer: The opinion concludes that a lawyer has an interest in keeping copies of client-owned documents, but that interest must yield to a former client's legitimate request to destroy them (here, a confidential settlement required the client to destroy the data); the lawyer may reasonably condition destruction on a release and a simple hold-harmless agreement from the former client and may keep an inventory of file names, sizes, and dates, but is doubtful it may insist on advance fee payment or a release and indemnity from the non-client former employer.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's view of New York's Rules of Professional Conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.

Plain-English summary

A lawyer represented a client in an intellectual-property dispute against the client's former employer, who had alleged misappropriation of proprietary information. The client gave the lawyer a large volume of digital data, then switched to new counsel; the lawyer delivered the full file to successor counsel but kept backup copies of the data. The client later settled confidentially, agreeing to retrieve and destroy all the disputed data, and asked the lawyer (not a party to the settlement) to destroy the backups and certify their destruction. The lawyer, worried about a later suit by the former client or the former employer, asked whether the lawyer must delete the backups and whether the lawyer may condition compliance on a release, indemnification (including advance of fees), and an inventory of the destroyed files.

The committee notes that Rule 1.15(c)(4) and Rule 1.16(e) require returning client property and avoiding foreseeable prejudice on termination, but that which documents the client owns is generally a question of law outside the committee's jurisdiction, so it assumes (without deciding) the data belongs to the client. Under N.Y. State 780 (2004), a lawyer generally may keep copies of file documents at the lawyer's expense even over a client's objection, reflecting the lawyer's interest in self-protection (see Rule 1.6(c)(5)(i), allowing use of confidential information to defend against an accusation of wrongful conduct). But that interest is not unqualified: "extraordinary circumstances," such as a client who retained the lawyer to recover and destroy a confidential document, can override it. Whether and how a lawyer may condition compliance on protections requires a fact-intensive balancing of factors including the strength of the client's ownership claim, the sensitivity and centrality of the documents, the legitimacy of the request, how much of the file is involved, the difficulty of destruction, the lawyer's real risk of later liability, and the feasibility of protective provisions, with the overriding requirement that the lawyer's demanded protections be reasonable.

Applying that here, the committee finds it reasonable for the lawyer to request a release and a simple hold-harmless agreement from the former client in exchange for destroying the documents: the client's ownership claim is strong (the documents originated with the client), the documents are sensitive and central to the engagement, the settlement gives a legitimate basis for the request, and electronic destruction is not difficult. Keeping an inventory of the file is unproblematic and adds protection. But the committee is dubious that the lawyer may insist on advance payment of litigation fees and expenses, or on a release and indemnity from the non-client former employer, as conditions of complying with the former client's destruction request.

In practice

Under this opinion, a lawyer faced with a former client's legitimate request to destroy client-owned data (such as one compelled by a settlement) should generally comply rather than insist on keeping copies. The opinion holds the lawyer may reasonably ask the former client for a release and a simple hold-harmless agreement and may keep an inventory of the destroyed files' names, sizes, and dates. It indicates the lawyer should not condition compliance on broader protections, such as advance payment of potential litigation costs or a release and indemnity from a non-client third party, because those demands are likely unreasonable on these facts.

Common questions

Q: Does a lawyer have to delete backup copies of a former client's files on request?

A: Per the opinion, the lawyer generally may keep copies, but that interest yields to a legitimate destruction request. Here, a settlement requiring the client to destroy the data made the request legitimate, so compliance is appropriate.

Q: Can the lawyer require a release before destroying the files?

A: Per the opinion, yes. A release plus a simple hold-harmless agreement from the former client is a reasonable condition, given the strong ownership claim and the documents' sensitivity.

Q: Can the lawyer keep a record of what was destroyed?

A: Per the opinion, yes. Maintaining an inventory of file names, sizes, and dates is unproblematic and gives the lawyer added protection against a later claim.

Q: Can the lawyer demand indemnity from the former employer or advance litigation fees?

A: Per the opinion, those go too far. The committee is doubtful the lawyer may insist on advance fee payment or a release and indemnity from the non-client former employer as a condition of complying with the destruction request.

Background and rules framework

The opinion applies New York Rule 1.16(e) (steps on termination to avoid foreseeable prejudice, including returning the client's papers and property), Rule 1.15(c)(4) (delivering client property the client is entitled to receive), and Rule 1.6, including Rule 1.6(c)(5)(i) (use of confidential information to defend against an accusation of wrongful conduct). These correspond to ABA Model Rules 1.16, 1.15, and 1.6. The committee frames document ownership as a question of law outside its jurisdiction and balances the lawyer's self-protection interest against the client's destruction request.

Citations and references

Rules of Professional Conduct:

New York Rules of Professional Conduct 1.16(e); 1.15(c)(4); 1.6; 1.6(c)(5)(i)
ABA Model Rules 1.16, 1.15, 1.6 (analogues)

Cases:

Sage Realty Corp. v. Proskauer Rose Goetz & Mendelsohn, 91 N.Y.2d 30 (1997): a client's entitlement to documents in the lawyer's file

Other authorities cited:

Restatement (Third) of the Law Governing Lawyers section 46, Comment d: a lawyer may keep copies of documents furnished to a client, subject to extraordinary circumstances
N.Y. State 780 (2004); 766 (1993); 623 (1991): retaining copies of client files and the law-versus-ethics line on ownership

Source

Landing page: https://nysba.org/ethics-opinion-1164/