Ezel / Ethics Opinions / VTBAR

Must a Vermont lawyer destroy or segregate part of a closed file at a former client's request?

Short answer Opinion 11-03 permits the lawyer to retain the complete file where it may be needed for future proceedings or defense of a claim, subject to privilege, if the former client is promptly told of the decision.
Bar
VTBAR
Issued
2011
Source
View Original PDF

Apply this to your situation

This page answers the general question as of 2011. Ask about yours and see what the current Vermont Rules of Professional Conduct say for your facts, with citations.

Currency note: this opinion is from 2011
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 Not binding precedent.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 on this page as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

After a criminal matter ended, the lawyer sent the former client a file copy. The former client then asked that one item be destroyed or kept separately. The lawyer wanted a complete file in case of post-judgment relief or a later claim against the lawyer.

The committee read Rule 1.16(d) as allowing a lawyer to retain client papers to the extent other law permits. It drew on file-retention guidance in ABA Informal Opinion 1384, especially preservation of material potentially useful to a client's claim or defense. On these facts, it permitted the lawyer to retain the whole file in one location, subject to attorney-client privilege. Rule 1.4 required prompt notice that the lawyer would not carry out the request.

In practice

For the former client's request described, the committee found no duty to destroy or segregate the item. Its permission to keep the whole file was tied to possible later use and to promptly informing the former client.

Common questions

Q: Could the former client require the lawyer to destroy one file item?

A: The committee said no on these facts; the lawyer could retain the complete file, subject to privilege and other law.

Q: Did the lawyer have to tell the former client?

A: Yes. The committee said the lawyer must promptly inform the client of the decision not to destroy or segregate the item.

Background and rules framework

The opinion applied Vermont Rules 1.16(d) and 1.4. It cited earlier Vermont file-delivery and retention opinions and ABA Informal Opinion 1384 on preserving material potentially useful in a matter.

Citations and references

Rules of Professional Conduct:

  • Vermont Rules of Professional Conduct 1.16(d) and 1.4

Other opinions cited:

  • Vermont Opinions 1999-07, 1997-08, 1995-05, and 91-3
  • ABA Formal Opinion 92-369 and Informal Opinion 1384 (1977)

See also

Source

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