Must a lawyer provide a client the electronic version of the client's documents, or can the engagement letter limit the client to paper copies?

Plain-English summary

An estate-planning attorney asked how the WSBA views the attorney's electronic file of a client's documents, whether an electronic version must be provided to a client on request, and whether the engagement letter could exclude client access to the electronic documents. The attorney offered a draft provision stating that, upon completion of the work, the client would receive the signed original documents and one paper copy of each, and acknowledging that the electronic version is the attorney's work product to which the client has no right.

The committee said it does not, as a matter of policy, comment on specific language. On these facts, it observed that the client had been provided the product contemplated, namely the estate-planning documents in paper format, and concluded that providing the client the original and one copy of the estate-planning documents complies with the Rules of Professional Conduct.

In practice

Under the Washington rules as they stood at the time of the opinion, the committee gave a narrow answer keyed to what the client actually received. It did not bless or reject the specific engagement-letter clause, consistent with its policy against parsing particular language. Its substantive point was that delivering the signed originals plus one paper copy of the estate-planning documents satisfied the rules on these facts; the committee did not separately resolve whether a client is entitled to the native electronic file.

Common questions

Q: Did the committee approve the engagement-letter clause excluding electronic files?

A: No. The committee said it does not, as a matter of policy, comment on specific language.

Q: Was providing only paper copies enough on these facts?

A: Yes. The committee concluded that providing the client the signed originals and one paper copy of the estate-planning documents complied with the Rules of Professional Conduct.

Background and rules framework

The committee did not cite a specific Rule of Professional Conduct. The inquiry concerned a lawyer's obligations regarding client files and the form in which a client's documents must be delivered, and the committee resolved it by reference to what the client had received rather than to a particular rule.

Citations and references

Rules of Professional Conduct:

• The committee did not cite a specific Rule of Professional Conduct.

See also

• CA Op. 2007-174: electronic versions of the client file at termination
• NJ ACPE Op. 701: electronic storage and access to client files

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1616

Original opinion text

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

Advisory Opinion: 2160
Year Issued: 2007
RPC(s):
Subject: ownership of electronic files

An estate planning attorney asks how the WSBA views the attorney’s electronic file of a client’s documents, if an electronic version of a client’s documents must be provided to a client upon request or if language in the engagement letter may exclude client access to electronic documents.

The attorney provided the following draft of a provision for review:

Upon completion of the work outlined in this engagement letter, you will be provided with the original documents that you signed, and one copy of each document, in paper format. You acknowledge that the electronic version of the estate planning documents is my work product and you have no right to receive a copy of the electronic file.

The committee opined that it does not, as a matter of policy, comment on specific language. In this instance, the client has been provided with the product contemplated, i.e., estate planning documents in paper format. Your provision to the client of the original and one copy of estate planning documents complies with the Rules of Professional Conduct.