Can a New York lawyer keep required trust-account records (checks, bank statements, deposit slips) in electronic form instead of paper?
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This page answers the general question as of 2002. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.
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
- NY State Bar Op. 759: Using an ATM to deposit into a trust account
- NY State Bar Op. 764: IOLA earnings credit and client consent
- NY State Bar Op. 763: Third-party credit card payments and fee deduction
Source
- Landing page: https://nysba.org/ethics-opinion-758/
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