Can a lawyer scan closed client files to disk or microfilm with an imaging vendor and shred the paper originals?

Plain-English summary

An attorney asked how to handle the accumulation of voluminous closed files, wishing to hire a company to place his "dead" files on computer disk or other media to save space while allowing retrieval if needed. The question was whether the attorney may use a document imaging service to store closed files on CD, microfilm, or microfiche, in readable and reproducible form, and then shred or otherwise dispose of the original hard copies.

The committee said this is basically a question of substantive law on which it cannot formally opine, but, consistent with its purpose of assisting members, offered informal advice. It recommended that the attorney and client enter into an agreement about file retention, and noted that a lawyer should hold others' property with the care of a professional fiduciary. Although there is no formal court rule or case law on the issue, Rule 1.15 (Rule 407, SCACR) and Rule 417, SCACR, suggest records should be retained at least six years; Rule 417(a)(3) also requires keeping copies of retainer and fee agreements under Rule 1.5 for six years.

The committee concluded that none of the rules or prior opinions addressed converting records to a medium and destroying the originals, but that there appears to be no prohibition on placing the property on a medium such as computer disk, microfilm, or microfiche and disposing of the hard copies, so long as the lawyer retains the system or access to the system used to read and retrieve the information, and there is no prejudice to the client. As with any outside vendor under contract to a firm, the attorney must ensure preservation of client confidentiality, making reasonable efforts to ensure confidentiality with any supplier or vendor (including accounting firms, tax consultants, fee auditors, and document imaging services) that would have access to client records, consistent with Rule 1.6.

Currency note

This opinion was issued in 1998, before the South Carolina Bar's adoption of the 2005 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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: Can a lawyer scan closed files and shred the paper originals?

A: The committee offered informal advice that there appears to be no prohibition on imaging the files to disk, microfilm, or microfiche and disposing of the originals, so long as the lawyer keeps access to read them and there is no prejudice to the client.

Q: How long must the records be kept?

A: The committee noted that Rules 1.15 and 417 suggest retention of at least six years, and that Rule 417 also requires keeping retainer and fee agreements for six years.

Q: What about using an outside imaging vendor?

A: The committee advised that the lawyer must make reasonable efforts to ensure any vendor with access to client records preserves confidentiality, consistent with Rule 1.6.

Background and rules framework

The opinion gave informal guidance touching South Carolina RPC 1.15 (safekeeping property; record retention, with Rule 417, SCACR) and RPC 1.6 (confidentiality, as applied to outside vendors), corresponding to the like-numbered Model Rules, while treating the core question as one of substantive law.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.15 / Model Rule 1.15: safekeeping property; record retention (with Rule 417, SCACR).
• South Carolina RPC 1.6 / Model Rule 1.6: confidentiality, including with outside vendors.

Other opinions cited:

• S.C. Bar Advisory Opinions 92-19, 98-36, 97-22.

See also

• SC Bar Ethics Op. 00-02: Six-Year Record Retention
• SC Bar Ethics Op. 98-23: IRS Request for Client Files

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-98-33/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 98-33

Attorney has asked how to handle the accumulation of voluminous closed files. He wishes to hire a company to place his "dead" files on computer disk or other media which would save space, but which would allow the retrieval of the documents if necessary.

Question:
May an attorney use a document imaging service to store closed files on a CD, microfilm, or microfiche, which file images are readable and reproducible if necessary, and thereafter shred or otherwise dispose of the original hard copies of the closed files?

Summary:
This issue is basically one of substantive law on which the committee cannot opine; however, the committee's purpose is to render assistance to members of the South Carolina Bar, and under that doctrine the committee offers the following informal advice.

The attorney and client may enter into an agreement regarding the retention of a file, which would be the recommended course of action. Although there is no formal court rule or case law on this issue, Rule 1.15 of Rule 407, SCACR, and Rule 417, SCACR, would suggest that records should be retained for a period of at least six years. There appears to be no prohibition in placing the property on a medium, such as computer disk, microfilm, or microfiche, and thereafter disposing of the original hard copies, as long as there is no prejudice to the client. The attorney should also make reasonable efforts to insure confidentiality with all suppliers and vendors who would have access to client records.

Opinion:
The problem of the retention and disposal of files has been an issue attorneys in South Carolina have faced for many years. One of the main ethical issues may arise with the portion of a file which belongs, as a matter of law, to the client. The attorney and client may enter into an agreement regarding the retention of a file, which would be the recommended course of action. In any event a lawyer should hold the property of others with the care required of a professional fiduciary.

Although there is no formal court rule or case law on this issue, Rule 1.15 of Rule 407, SCACR, and Rule 417, SCACR, would suggest that records should be retained for a period of at least six years. (See also, Ethics Advisory Opinion 92-19.) In addition to financial records to be kept pursuant to Rule 417, SCACR, Paragraph (a)(3) therein requires that copies of attorney-client retainer and compensation agreements under Rule 1.5, SCACR, also be kept for six years.

None of the rules or the previous ethics advisory opinions address whether the records or property entrusted to the attorney may be placed on a medium, such as computer disk, microfilm, or microfiche, and the original hard copies destroyed. There would appear to be no prohibition in placing the property on a medium, such as computer disk, microfilm, or microfiche, and disposing of the original hard copies, so as long as the lawyer retains the system or access to the system used to read or retrieve the information.

In this case as in all cases where an outside vendor or supplier is under contract to a law firm, the attorney must insure preservation of client confidentiality. It is the opinion of this Committee that a law firm should make reasonable efforts to insure confidentiality with any outside supplier or vendor who, by the nature of the contract or service, would have access to client records. These suppliers or vendors would include, but not be limited to, accounting firms, tax consultants, fee auditors (see Opinions 98-36 and 97-22) and document imaging services. See also Rule 1.6 of Rule 407, SCACR.