Does a recycling ordinance excuse a lawyer from confidentiality duties, and how must a lawyer recycle paper that contains client confidences?
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This page answers the general question as of 1993. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.
Plain-English summary
New York's Solid Waste Management Act of 1988 required municipalities to adopt local laws by September 1, 1992 mandating separation of recyclable material, including paper, from other solid waste. A lawyer asked whether the Code exempted lawyers from such a recycling law and, if not, what duties the Code imposed when complying.
The committee held there is no exemption. A lawyer's representation must stay within the bounds of the law (Canon 7), and lawyers have no special license to violate laws of general applicability, including recycling laws. At the same time, those general laws do not override the Code, so a lawyer complying with a recycling law must still honor the duty to preserve client confidences and secrets under Canon 4. The committee rejected reliance on the DR 4-101(C)(2) "required by law" exception: a recycling ordinance does not require revealing confidential information, it only bars disposing of paper in an ecologically unsound way, so it does not exempt the lawyer from confidentiality duties.
Drawing on N.Y. State 623 (1991) on disposing of closed files, the committee explained that the care required depends on the sensitivity of the papers, which can fade years after a representation ends. The lawyer must know what happens to discarded paper. If papers will be open to inspection by people outside the office, the lawyer may not place them in their original form: papers put in opaque bags and not sorted before recycling may be placed as is, but papers that are sorted, placed in clear bags, or otherwise viewable must be shredded or handled another way. The lawyer must screen all papers, at filing or at disposal, to decide whether recycling in original form is appropriate or whether shredding or another method is required.
Currency note
This opinion was issued in 1993, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 2009. The provisions on confidences and secrets have since been recast in Rule 1.6. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.
Common questions
Q: Does a recycling law force a lawyer to expose client documents?
A: No. The committee reasoned that a recycling ordinance only governs how paper is disposed of, not what is revealed, so it does not require disclosure of confidences and the DR 4-101(C)(2) "required by law" exception does not apply.
Q: Can a lawyer just toss client papers into the recycling bin?
A: Only if outsiders cannot view them. The committee held that papers placed in opaque, unsorted bags may go in as is, but papers that are sorted, in clear bags, or otherwise viewable must be shredded or otherwise secured.
Q: Does the duty depend on how sensitive the papers are?
A: Yes. The committee said the care required turns on whether disclosure would embarrass or harm the client, and that sensitivity can diminish years after the representation ends.
Background and rules framework
The opinion interpreted New York's former Code: Canon 4 and DR 4-101(A), (B), and (C) (confidences and secrets and their exceptions) and EC 4-6 (duty continues after employment ends), against the backdrop of Canon 7 (representation within the bounds of law). The closest Model Rule analogue is Rule 1.6 (confidentiality of information). New York replaced the Code with the Rules of Professional Conduct in 2009; the provisions cited here are historical.
Citations and references
Rules of Professional Conduct:
- MR 1.6 (confidentiality of information)
- NY DR 4-101(A), (B), (C)(1), (C)(2); EC 4-6; Canon 4; Canon 7
Statutes:
- N.Y. Solid Waste Management Act of 1988 (municipal recycling mandate)
Other opinions cited:
- N.Y. State 623 (1991): procedures for disposing of closed client files
See also
- NY State Bar Op. 680: Record retention by electronic means
- NY State Bar Op. 645: A financial-disclosure law versus client confidences
- NY State Bar Op. 643: A conflicts panel for a legal services organization
Source
- Landing page: https://nysba.org/opinion-641/
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