Ezel / Ethics Opinions / NYSBA
NYSBA 2021-01-08

When a county defunds its public defender's office, can the office hand its open and closed client files to the county's assigned counsel program?

Short answer: No, not without client consent. The opinion concludes that the assigned counsel program is not a lawyer or law firm, so the office may deliver open files only to the client or successor counsel and must preserve them until then; closed files must be kept as a dissolving firm would keep them.
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 Not binding precedent.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 1212: Public Defender Files When a Program Is Defunded

Short answer: The opinion concludes that, absent the client's informed consent, a defunded public defender's office may not deliver open or closed client files to the county's assigned counsel program; it must transfer open matters to the client or successor counsel and preserve them until it can, and must maintain closed files as a dissolving law firm would.

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

The inquirer is a lawyer at a not-for-profit public defender's office that provides assigned criminal defense under County Law Article 18-B. The county defunded the office and is moving to an alternate program; after the office withdraws from its clients, the county asked it to turn over open and closed client files to the assigned counsel program, which is administered by an employee of the county attorney's office. The closed files span more than 30 years and have all been converted to electronic format. The office asked whether it may turn over its open files and its closed files to the assigned counsel program.

The opinion first frames the entities. A public defender's office is a qualified legal services organization and thus a law firm under Rules 1.0(h) and (p) and 7.2(b)(1). The assigned counsel program, by contrast, is not a law firm; it is an entity that sets protocols for assigning attorneys. For open files, withdrawing lawyers must comply with Rule 1.16(e) (avoid foreseeable prejudice, give notice, allow time for new counsel, deliver papers and property the client is entitled to) and with the confidentiality duties of Rule 1.6 and Rule 1.9(c). So the office may deliver open files to the clients themselves or to successor counsel appointed under Article 18-B, but not to the assigned counsel program (which is neither a lawyer nor a law firm and represents no clients) without each affected client's informed consent. If delivery to the client is not possible and consent cannot be obtained, the office must preserve the file until successor counsel is appointed. The committee acknowledged the burden on an unfunded entity but noted lawyers are better suited than clients to foresee such burdens (Comment [8A] to Rule 1.16), and that who bears the cost is a question of law, possibly an obligation of the county.

For closed files, the opinion explains there is no ethical duty to keep entire closed files indefinitely, but some documents must be kept, such as originals of intrinsic value (wills, deeds, negotiable instruments) and documents the lawyer knows or should know the client or a third party may need in the future (citing N.Y. State 1192). The office had not yet performed the case-by-case review to separate what the client is entitled to from what may be withheld (referencing Sage Realty v. Proskauer Rose), but its conversion of closed files to electronic format is acceptable so long as evidentiary value is not unduly impaired (citing N.Y. State 940 and 623). Crucially, the obligation to maintain closed files survives the defunding just as it would survive a law firm's dissolution: lawyers in the office have the same duty as members of a dissolving firm to maintain former clients' closed files, because clients retain the firm as an entity (citing N.Y. State 1192, 398, and Nassau County 40-88).

In practice

Under this opinion, a defunded New York public defender's office may not hand client files to a county assigned counsel program, because that program is not a lawyer or law firm; under Rule 1.16(e) and the confidentiality duties of Rules 1.6 and 1.9(c), the office may deliver open files only to the client or to appointed successor counsel, and must preserve them until that transfer occurs if it cannot get the client's informed consent. Per the opinion, closed files must be maintained as a dissolving firm would maintain them, keeping at least originals of intrinsic value and documents the client may need in the future; electronic storage is acceptable if evidentiary value is preserved. Per the opinion, who pays for that preservation is a question of law the committee did not decide.

Common questions

Q: Can the defunded office give its open client files to the assigned counsel program?

A: No, absent client consent. Per the opinion, the program is not a lawyer or law firm, so open files go to the client or appointed successor counsel under Rule 1.16(e), and must be preserved until then.

Q: Does the office still owe duties on closed files after it loses funding?

A: Yes. Per the opinion, the duty to maintain closed files survives defunding just as it survives a firm's dissolution, because the client retains the firm as an entity (citing N.Y. State 1192).

Q: Must every closed document be kept forever?

A: No. Per the opinion, there is no duty to keep entire closed files indefinitely, but the office must keep originals of intrinsic value and documents the client or a third party may need in the future.

Q: Is electronic storage of the closed files acceptable?

A: Yes. Per the opinion, converting closed files to electronic format is acceptable as long as the evidentiary value of documents that might be needed is not unduly impaired (citing N.Y. State 940).

Background and rules framework

The opinion interprets Rule 1.16(e) (steps on withdrawal to avoid prejudice and deliver client papers) with Comment [8A], the confidentiality duties of Rule 1.6 and Rule 1.9(c), Rule 1.15(c)(4) (prompt delivery of client property), and the definitions of "firm" and "qualified legal services organization" in Rules 1.0(h), 1.0(p), and 7.2(b)(1). These correspond to ABA Model Rules 1.16, 1.6, 1.9, and 1.15.

Citations and references

Rules of Professional Conduct:

  • New York Rules of Professional Conduct 1.16(e) and Cmt. [8A], 1.6 and Cmt. [2], 1.9(c), 1.15(c)(4), 1.0(h), 1.0(p), 7.2(b)(1)
  • ABA Model Rules 1.16, 1.6, 1.9, 1.15 (analogues)

Statutes:

  • N.Y. County Law Articles 18-A and 18-B, § 722

Cases:

  • Sage Realty Corp. v. Proskauer Rose LLP, 91 N.Y.2d 30 (1997), scope of client's right to the file

Other opinions cited:

  • N.Y. State 1192 (2020); 940 (2012); 623 (1991); 398 (1975); Nassau County 40-88 (1988): retaining and disposing of closed files

See also

Source