Can a law firm scan incoming mail, destroy the paper originals, and keep only electronic copies?

Plain-English summary

A legal services agency uses a third-party vendor to receive and process its mail. It proposed having the vendor scan all mail and email it to the responsible lawyers, automatically forward the hard copy of items "for which an original is required" (motions, deeds, signed client documents, checks, transcripts, title documents, escrow statements), and hold other hard copies for one month, during which staff could click to have the original delivered. After a month with no request, the vendor would securely destroy the hard copy while keeping the scan on a secure server indefinitely.

The committee first addresses confidentiality. Under Rule 1.6 and its Comment [2], a lawyer must protect information related to the representation and, under Rule 1.6(c) and Rule 5.3(b), must use reasonable care to prevent disclosure by others whose services are used, including the vendor. The agency's confidentiality agreements with vendor personnel, and its oversight of their compliance, must be sufficient to constitute reasonable care, and the firm must ensure the storage system is secure (citing N.Y. State 842 (2010) on cloud storage).

On destruction, the committee draws on N.Y. State 940 (2012), which addressed retaining records in original form, and applies it to mail. Some items must be kept in original paper form: items listed in Rule 1.15(d), such as bank statements received on paper, and documents like promissory notes and deeds. The proposed system has two mechanisms to catch those (automatic forwarding and the staff-review window), but their adequacy depends on the design and implementation, and the inquiry does not describe a clear protocol for how the vendor identifies originals or how the 30-day window handles a lawyer's absence, so the committee cannot opine on the system's adequacy. For items where only copies must be retained, keeping electronic copies on a secure server indefinitely should satisfy the requirement, subject to constraints such as admissibility standards and the Rule 1.15(d)(3) requirement that copies of listed items be kept in an unalterable medium.

In practice

The opinion holds that, under the New York rules as they stood in 2012, a firm may move to electronic-only retention of mail if it reliably identifies and preserves the items it must keep in original form and safeguards confidentiality where a vendor is involved. The committee identifies the controlling factors as the reliability of the firm's protocol for flagging originals (which it could not assess on the facts given) and reasonable care over the vendor's confidentiality and the security of electronic storage.

Common questions

Q: Can a law firm go paperless by scanning and shredding incoming mail?

A: Yes, with safeguards. Per the conclusion (paragraph 15), a firm may keep only electronic copies if it has a reliable method to identify the items that must be kept in original hard-copy form.

Q: Which mail items still have to be kept on paper?

A: Items the rules require in original form, such as the bank statements listed in Rule 1.15(d), and documents like promissory notes and deeds (paragraph 10, citing N.Y. State 940).

Q: What about confidentiality when a vendor handles the mail?

A: The firm must use reasonable care. Per paragraphs 6 to 8, Rule 1.6(c) and Rule 5.3(b) require enforceable confidentiality agreements, oversight of the vendor, and a secure storage system.

Background and rules framework

The opinion interprets Rule 1.6 (Model Rule 1.6, confidentiality, including the Rule 1.6(c) duty to prevent disclosure by others and Rule 5.3 supervision of nonlawyers) and Rule 1.15(d) (Model Rule 1.15, required records and the medium for retaining them). It applies the records-retention principles of N.Y. State 940 (2012) to incoming mail.

Citations and references

Rules of Professional Conduct:

• MR 1.6 / NY Rule 1.6, 1.6(c) (confidentiality; preventing disclosure by others); Rule 5.3(b) (supervising nonlawyers)
• MR 1.15 / NY Rule 1.15(d)(1), (d)(3) (required records; retention medium)

Other opinions cited:

• N.Y. State 940 (2012): when records must be kept in original form versus copies.
• N.Y. State 842 (2010): reasonable care for cloud/online storage of client information.

See also

• NY State Bar Op. 1019: Remote access to firm files from home
• NY State Bar Op. 1020: Cloud storage for sharing transaction documents
• NY State Bar Op. 1094: Releasing a client file to former counsel

Source

• Landing page: https://nysba.org/ethics-opinion-950/