Can a lawyer place closed client files in a university archive and let researchers have limited access to them?

Plain-English summary

A lawyer held many closed files of possible historical significance. The entity that had employed the lawyer to represent various clients had an agreement with a university to archive and maintain files, and the lawyer wanted his files included. Under the arrangement, researchers could access the files only after a written request was made and approved. The committee was asked whether the arrangement was proper.

The controlling rule was DR 4-101, which governed the duty of confidentiality and distinguished "confidences" (privileged information) from "secrets" (other information the client asked to be held inviolate or whose disclosure would embarrass or likely harm the client). The committee recalled that the duty is not diminished by the passage of time (LE Op. 812) and survives the client's death (LE Op. 1207), and that it had previously held a deceased lawyer's files should not be turned over to an institution because the client's wishes remain the dominant consideration (LE Op. 928; EC 4-6). Most directly on point, LE Op. 1307 held that a nonlawyer, or a lawyer not affiliated with the firm originally entrusted with the information, may review file jackets to categorize them but may not review the contents of attorney-client files, regardless of a promise to set the material aside.

The committee allowed that, under the rule-of-reason exceptions in DR 4-101(B), a lawyer may give limited information to outside agencies for legitimate purposes such as statistical, bookkeeping, accounting, or data-processing work (EC 4-3), but only with due care and a warning that the information must be kept confidential (DR 4-101(E); LE Op. 1628). It treated LE Op. 1307 as controlling here: scholar access to former clients' case files is not permissible under DR 4-101(B) without client consent if the files contain confidences or secrets. The committee added that information that has become a matter of public record is generally no longer confidential (LE Op. 1147), but identifying data can itself be a secret (LE Op. 1300), and an implied attorney-client relationship can arise wherever a person shared confidences expecting confidentiality even if no representation resulted (LE Op. 452; ABA Formal Op. 90-358).

The committee concluded that, before turning over any former client's case file to the university, the lawyer must either obtain the client's consent to release the file or ascertain whether the file contains client confidences or secrets.

Currency note

This opinion was issued in 1996, under Virginia's former Code of Professional Responsibility (the disciplinary rules and ethical considerations it cites), before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000. 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 donate or archive old client files at a library or university?

A: Under this 1996 opinion, only after either getting the client's consent or confirming the files contain no confidences or secrets. The committee held the confidentiality duty survives the matter and the client's death, so files with protected information cannot be opened to an archive or to researchers without consent.

Q: Can researchers review the files if they promise not to use client names?

A: No, not where the files contain confidences or secrets. The committee treated LE Op. 1307 as controlling: an outsider may categorize file jackets but may not review the contents of attorney-client files, regardless of a promise to set identifying material aside.

Q: Does the duty of confidentiality end when a matter closes or the client dies?

A: No. Citing LE Op. 812 and LE Op. 1207, the committee held the passage of time does not affect the duty and that it survives the client's death, with the client's wishes remaining the dominant consideration.

Background and rules framework

The opinion interpreted former Virginia DR 4-101 (confidences and secrets), with its rule-of-reason exceptions in DR 4-101(B), the duty to safeguard information shared with agents under DR 4-101(E), and EC 4-3 and EC 4-6 (limited disclosure to outside agencies; client wishes dominant on a lawyer's death or retirement). The confidentiality duty is now carried forward in Virginia Rule 1.6 and its analog, ABA Model Rule 1.6.

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 4-101(A), (B), (E); EC 4-3; EC 4-6 (Code of Professional Responsibility)
• ABA Model Rule 1.6(a) (information relating to representation)

Other opinions cited:

• Virginia LE Op. 1307: an outsider may categorize file jackets but may not review attorney-client file contents.
• Virginia LE Op. 812, 1207, 928: confidentiality survives time and the client's death; files not turned over to an institution against the client's wishes.
• Virginia LE Op. 1147, 1300: public-record information generally not confidential, but identifying data can be a secret.
• ABA Formal Op. 90-358: an implied attorney-client relationship can arise from a confidential consultation.

See also

• VA LEO 1811: Former Client File Confidentiality
• VA LEO 1818: Electronic-Only Client Files
• VA LEO 1789: Medical Report in Client File

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1664.pdf

Original opinion text

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

Committee Opinion
February 9, 1996
LEGAL ETHICS OPINION 1664

AGREEMENT BETWEEN ATTORNEY
AND UNIVERSITY FOR
MAINTENANCE AND ARCHIVING OF
CLOSED CLIENT FILES WHICH
WOULD BE AVAILABLE ON A
LIMITED BASIS FOR RESEARCH.

You have presented a hypothetical situation in which an attorney has in storage many
closed files which may have historical significance. The entity which employed the
attorney to represent various clients during the time he handled these files has an
agreement with a university to archive and maintain certain files. The attorney would like
to have his files included with those maintained at the university. Under the agreement
with the university, access to the attorney's files for research would be granted only after
a written request is made and approved. Under the facts you have presented, you have
asked the committee to opine as to the propriety of this arrangement.
The appropriate and controlling disciplinary rule relative to your inquiry is DR:4-101.
DR 4-101 governs a lawyer's duty of confidentiality to clients. DR:4-101(A) establishes
two distinct categories of confidential information: 1) “confidences,” which are
information protected by the attorney-client evidentiary privilege; and 2) “secrets,” which
are other information gained in the professional relationship “that the client has requested
be held inviolate or the disclosure of which would be embarrassing or would be likely to
be detrimental to the client.”
In the absence of a client's request to hold secrets inviolate, DR:4-101(A) entails a
subjective analysis of whether disclosure would be embarrassing or likely detrimental to
the client. In contrast, ABA Model Rule 1.6(a) prohibits disclosure of “information
relating to or gained in the course of a representation of a client.”
The committee has previously opined that the passage of time does not affect a lawyer's
ongoing duty of confidentiality (LE Op. 812), and that the duty survives the client's death
(LE Op. 1207). The Committee also has opined that it is not proper for a lawyer's files to
be turned over to an institution following his death since the client's wishes remained the
dominant consideration. LE Op. 928. See EC 4-6 [EC:4-6] (upon lawyer's death,
disability or retirement, clients' instructions and wishes are dominant consideration in
whether clients' personal papers are to be returned and lawyer's papers to be delivered to
another lawyer or destroyed.) See also LE Op. 956.
In LE Op. 1307, the Committee was asked whether it was permissible for a deceased
lawyer's daughter, who was a trained historian, to review his attorney-client files where
she represented that information from those files would not be used to verify or amplify
her historical work, but would be set aside from the materials being used. The Committee
concluded that the daughter/historian properly could review the file jackets to categorize
them, but that she could not review the contents of attorney-client files.

Committee Opinion
February 9, 1996
[I]t would not be proper . . . for a nonlawyer, or for a lawyer who is not affiliated with
the same firm or practice as the lawyer to whom the client's information was originally
entrusted, to review the contents of the legal, attorney-client files for any purpose
regardless of any representation that the material will be set aside . . .
DR:4-101(B) is subject to rule of reason exceptions. Hence, a lawyer may disclose
client confidences/secrets to employees or professionals whose service form part of the
representation. Even then, however, DR:4-101(E) requires a lawyer to exercise
reasonable care to prevent those persons from disclosing or using client
confidences/secrets. See LE Op. 1628.
Similarly, unless a client otherwise directs, a lawyer may give limited information from
his files to an outside agency necessary for statistical, bookkeeping, accounting, data
processing, banking, printing or other legitimate purposes. There, too, the lawyer must
exercise due care in the selection of the agency and warn the agency that the information
must be kept confidential. EC:4-3. See LE Op. 859 and LE Op. 1300.
In the hypothetical presented, scholars wishing access to the lawyer's case files would
be required to represent that their work would not involve any use of former clients'
names or other identifying data. On the facts presented, the Committee believes that LE
Op. 1307 is controlling, and that scholar access to former client's case files is not
permissible under DR:4-101(B) without client consent if the case files contain client
confidences or secrets.
The Committee previously opined that once information has become a matter of public
record, it is no longer confidential “unless the attorney should have known or it is
obvious that such information may be construed to constitute a 'secret' under DR:4-101
and should remain confidential.” LE Op. 1147. In LE Op. 1300 the Committee opined
that identifying data about a client of a legal aid office was a secret since it might be an
embarrassment to the client to have it revealed that he received legal aid services. ACLU
legal assistance to the general public and prisoners likewise might be construed to
constitute a client secret. The Committee observes, however, that if no attorney-client
relationship resulted from a request for legal assistance, then DR:4-101(B) is not
applicable; bearing in mind, however, that an implied (though not formal) attorney-client
relationship can arise whenever a lawyer receives confidences or secrets from a person
who had an expectation of confidentiality even if no representation resulted. See LE Op.
452; ABA Formal Op. 90-358. With respect to the retention/destruction of client files, the
Committee directs your attention to LE Op. 1305.
In the facts you present, the committee believes that before turning over any former
client's case file to the university, you must either obtain client consent to release the file
to the university or ascertain whether the file contains information which constitutes
client confidences or secrets. DR:4-101(A); DR:4-101(B)(1).
Committee Opinion
February 9, 1996