Did you happen to notice the new ethics opinion issued in September 2016? You aren’t alone, but don’t worry. Let’s get caught up.
OSB Formal Opinion 2016-191 addresses a lawyer’s ethical responsibilities in keeping paperless client files and disposing of client property.
Everything Old is New Again
Nigh on eight years ago, I gave some advice on this subject:
- Inform clients of your digital storage practices. Explain how you will provide documents to current clients in the regular course of business and in the event a former client requests a complete copy of his or her file.
- Update your fee agreement and engagement letters to reflect your file policies and procedures.
- Be prepared to provide clients with a copy of their digital file in a format they can access. [This may mean physically printing the file.]
- Establish a retention policy for your digital files.
- Use security measures to protect client records.
- Take steps to ensure that documents stored electronically cannot be inadvertently modified or destroyed.
- Backup, backup, backup!
- Review the Professional Liability Fund (PLF) practice aid, Checklist for Imaging Client Files and Disposing of Original Documents. This checklist has since been renamed Checklist for Scanning Client Files. It points out that certain papers should not be discarded after scanning. Examples include any document whose authenticity could be disputed, those with particular legal importance, or documents that only have value or enforceability as a piece of paper. It also admonishes that original client property cannot be destroyed without consent.
See Beverly Michaelis, “Is It Time to Go Paper-Less?” PLF In Brief (February 2009), available on the PLF website.
What Does the Oregon State Bar Say?
OSB Formal Opinion 2016-191 reinforces my earlier advice:
First, there is no ethical prohibition against maintaining the “client file” solely in electronic or paperless form. But this doesn’t mean your ethical duties are thrown out the window.
Lawyers must safeguard client property, maintain confidentiality of information, and ensure availability of electronic file documents. This means:
- Taking reasonable steps to ensure the security of electronic-only files.
- Protecting against destruction of original client documents without the client’s express consent.
- Retaining records for appropriate time periods, including following the completion of the matter or termination of representation.
- Considering whether an electronic-only file might present a hardship for clients who need to access and work with the documents in paper form.
Lawyers must also communicate with the client regarding the terms of the representation and relevant developments affecting the representation:
- The opinion suggests entering into reasonable agreements regarding how you will maintain client files during and after the conclusion of a matter. [Yes, please!]
- You should also confirm that converting your closed paper file to electronic-only documents does not violate the terms of your retention agreement with the client.
If you use cloud-based solutions for storage of electronic-only files, re-read OSB Formal Opinion 2011-188 or see this post.
All Rights Reserved Beverly Michaelis 2017.
It feels good to be right. Chalk one up for me 🙂