Ezel / Ethics Opinions / NYSBA
NYSBA 2002-12-10

Can a New York lawyer keep required trust-account records (checks, bank statements, deposit slips) in electronic form instead of paper?

Short answer: The opinion concludes the lawyer must keep the DR 9-102(D)(8) items in their original form, paper or electronic; if the bank returns them on paper in the ordinary course the lawyer keeps paper, but need not make extraordinary effort or expense to obtain paper copies.
Currency note: this opinion is from 2002
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
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 Not binding precedent.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.

NY State Bar Ethics Opinion 758: Electronic retention of trust-account records

Short answer: A lawyer must retain the trust-account records listed in DR 9-102(D)(8), checkbooks and stubs, bank statements, canceled checks, and duplicate deposit slips, in their original form, which may be paper or electronic; if the bank returns these items on paper in the ordinary course of business the lawyer keeps them on paper, but the lawyer need not undertake extraordinary effort or expense to obtain paper copies.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association'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.

View original opinion

Plain-English summary

The committee was asked whether the items listed in DR 9-102(D)(8), checkbooks and check stubs, bank statements, prenumbered canceled checks, and duplicate deposit slips, may be kept electronically rather than as paper copies for the required seven-year period. The committee's earlier opinion, N.Y. State 680 (1996), had said these items must be kept in their "original form" and assumed that original form would be paper that the lawyer holds.

The committee observed that modern banking has undercut that assumption: checkbooks and statements may exist only as electronic documents, paper checks may be replaced by electronic transfers, and banks often do not return canceled checks, providing images or descriptive listings instead. Reading DR 9-102(D)(8) in that light, the committee interpreted the rule to require retention in the items' original form, whether that form is paper or electronic.

The committee concluded that where the bank returns these items on paper in the ordinary course, the lawyer should retain them on paper; but the lawyer is not required to undertake extraordinary effort or incur extra expense to obtain paper versions. This interpretation updates N.Y. State 680 for electronic banking practice.

In practice

Under the Code as it stood in 2002, the opinion concluded that the test for trust-account records is "original form," not "paper." A lawyer whose bank delivers these records electronically may keep them electronically; a lawyer whose bank delivers them on paper should keep the paper. The opinion held the lawyer need not convert electronic records to paper or pay extra to get paper copies.

Common questions

Q: Can a New York lawyer keep trust-account records only in electronic form?

A: Yes, where that is their original form. The opinion concludes DR 9-102(D)(8) requires retention in the items' original form, which may be electronic under modern banking practice.

Q: If the bank sends paper checks or statements, can the lawyer scan and discard the paper?

A: No. The opinion holds that where the bank returns these items on paper in the ordinary course, the lawyer should retain them on paper.

Q: Does the lawyer have to get paper copies of records the bank keeps electronically?

A: No. The opinion concludes the lawyer is not required to undertake extraordinary effort or incur extra expense to obtain paper versions.

Background and rules framework

The opinion interprets New York's former Code of Professional Responsibility, specifically DR 9-102(D)(8) (the seven-year retention of trust-account records). The Model Rules analogue is Rule 1.15 (safekeeping property and required records). New York replaced this Code with the Rules of Professional Conduct in 2009; the DR numbers cited here are historical.

Citations and references

Rules of Professional Conduct:

  • MR 1.15 (safekeeping property; trust-account records)
  • NY DR 9-102(D)(8)

Other opinions cited:

  • N.Y. State 680 (1996): trust records must be kept in original form; updated here for electronic banking

See also

Source