This year’s TECHSHOW did not disappoint. The Best in Mobile Apps for IOS and Android included great suggestions for scanning, scheduling, managing projects, reading PDFs, aggregating email, stopping spam, encrypting data, investigating metadata, using VPNs, sharing files, tracking deliveries, creating personal emojis, messaging, depositing checks, processing credit cards, client billing & more!
For a recap, click here or on the image below.
Last week the Oregon State Bar issued OSB Formal Opinion 2017-192, which supersedes OSB Formal Opinion 2005-125. This is the second opinion in the last six months to address the subject of client files.
Opinion 192 provides answers to the following questions:
Interesting questions, some of which present issues of first impression. Let’s break it down.
A client file is “the sum total of all documents, records, or information (either in paper or electronic form) that the lawyer maintained in the exercise of professional judgment for use in representing the client.” OSB Formal Opinion 2017-192.
The lawyer is obligated to deliver the “entire client file.” Under OSB Formal Opinion 2017-192 the “entire client file” includes:
This sounds like everything, but it isn’t.
There are seven identified exceptions to producing the entire client file. These are discussed below.
A lawyer may have the right to withhold the client file in its entirety if she has a valid attorney fee lien. See Helen Hierschbiel, Difficult Paradigm: Are lien rights absolute? (Whether this is ever a good idea would require another blog post. Suffice to say, if you stand on your statutory right to assert a lien, don’t be surprised when your client files an ethics complaint.)
Lawyers are not obliged to release documents or information to which the client is not entitled. For example, a legal memo or document from a prior case used for reference in the current client file. In fact, releasing such information would be a breach of the former client’s confidentiality.
However, if the lawyer’s reliance on the memo or document is “relevant to a dispute between current lawyer and client,” the lawyer may be obliged to produce a redacted version of the memo or document.
Practice Tip: Pulling memos, documents, or pleadings from one file to use in another is a very common practice, but do yourself a favor. Save this content as non client-specific legal research, templates, or forms to the extent possible. Sanitize and redact once, then save the content to reuse whenever needed.
Emails and documents showing that the lawyer consulted counsel to explore his exposure to discipline or malpractice liability are “not part of the client file and need not be produced to the client or provided during a change in representation.”
Practice Tip: Always keep a separate file for documents or communications that fit within this exception.
Documents “created for internal use primarily for the lawyer’s own purpose” need not be produced to the client. These include:
Practice Tip: Before you whoop and holler over your ability to withhold “time and expense records,” be aware you still have an obligation to provide clients with an accounting of their funds under Oregon PRC 1.15-1(d).
Also, while they may not be part of the “client file” under this opinion that doesn’t mean that you are scot-free. Picture a fee dispute where the time and expense records differ signifcantly or relevantly from your client accounting. Or a legal malpractice claim where the only proof of a key client conversation appears in a time entry, not in your client billings. In either circumstance, it is conceivable that your time and expense records would be discoverable. See Footnote 3 of the opinion which discusses the broader standards that apply under ORCP 36 or FRCP 26.
Electronic documents or information “that could be construed as computer metadata, or which would otherwise be too burdensome and expensive to identify, locate, and produce in a readable or accessible format” need not be produced as part of the client file.
What kind of documents or information could be “too burdensome and expensive to identify, locate and produce” besides metadata? Client data contained in proprietary software, such as a docketing program. Discussion aside, the opinion suggests that “to the extent a summary or report can be created by the software, the lawyer should include that as part of the client file.” Could a client be charged for the cost of extracting or converting data from such a program? No, unless the fee agreement provided differently. See the discussion below.
Practice Tip: Be careful if you rely upon this exception for anything other than metadata or client information contained in proprietary software.
Remember that email and text messages are expressly part of the client file under this opinion. If you don’t have a good system for capturing this type of communication, you should make it your number one priority. I’ve written many times about capturing email as part of the client file. See Part 1 and Part 2 of this article.
If you text frequently with clients, take a long, hard look at Zipwhip. This service enables text messages to be received and sent using your law office’s existing landline or toll-free number. Text conversations can be saved as a PDF document in the client’s folder, which ensures compliance with OSB Formal Opinion 2017-192.
If substantive law or court order prohibits delivery of documents in whole or in part to a client, the law or order must be obeyed.
The final stated grounds for producing less than the entire client file is based on “appropriate disclosure” and lack of client objection. This makes perfect sense. If the client agrees to accept less than the entire file, it should be the client’s choice.
Practice Tip: If you’re going to rely on “appropriate disclosure” and the lack of an objection on the client’s part to producing the entire file – document it and create a clear trail of what you did provide. This may be important later if the client misremembers what you did or did not produce. (See Footnote 6 to the opinion.)
Could there be other classes of documents or information that may be withheld? Yes. Anything is possible, and the opinion acknowledges this with the following admonition:
“As a general proposition, however, unless there is a valid reason for not providing documents as discussed above, all documents from the client file should be provided.”
“A lawyer has a right to retain a copy of the client file,” no ifs, ands, or buts.
Practice Tip: Occasionally business or corporate clients may pressure lawyers to surrender or destroy their copy of the client file. Point these clients to this opinion. Better yet: address this subject up front in your written engagement letter/fee agreement to avoid hassles later.
Lawyers cannot charge clients for:
These copies must be made at the lawyer’s expense. This is in keeping with former opinion 125. As to other documents which lawyers may scan or photocopy, presence of a fee agreement is key:
If you were smart enough to cover this ground in your fee agreement, you can bill the client for photocopy and scanning costs. The original document exceptions discussed above still apply. (Mini tip: if you withdraw or the client fires you mid-matter, read Footnote 8. Your right to enforce payment of the cost of duplicating the file may have to yield, temporarily, to the client’s need to have the file for an ongoing legal matter.)
If you did not reserve the right to separately charge for duplication expenses in your fee agreement, then the client is entitled to one copy, without charge, of any documents not previously provided.
In either case, if a client wants duplicate copies of documents or information previously provided, “the lawyer is entitled to charge for those costs.”
Practice Tip: Address the topics of copying documents and charging for duplicates in your fee agreement.
OSB Formal Opinion 2017-192 briefly revisits the ground covered by its predecessor: OSB Formal Opinion 2016-191. You’ll recall that opinion 191 spoke to a lawyer’s ethical obligations in keeping or producing an electronic-only copy of a file. To bottom-line it for purposes of Opinion 192, providing clients with an electronic copy of their client file is fine, if they can access it. If they can’t, you are obliged to provide the file in a format “that can be accessed or read by the client.” For some, this may mean producing a paper file. See this post for a complete discussion.
A lawyer may not charge:
A lawyer may charge for the cost of:
As mentioned above, extracting or converting client data contained in proprietary software may fit the “too burdensome” exception. However, if produced, a lawyer cannot require the client to bear this cost “absent an agreement to the contrary.” Translation: like so many other points, you need to cover this in your fee agreement.
That, my friends, is a good question! Up to this point, we’ve only discussed a lawyer’s ethical obligations, not the standard that might apply in discovery should a legal malpractice action occur. If you have concerns about file production in conjunction with a claim or suit brought by a client, contact the Professional Liability Fund.
OSB Formal Opinion 2017-192 is a lot to chew. And as noted above, it is one of two opinions issued in the last six months governing client files. I hope this post has helped, at least a bit. I am planning a CLE in June to address the issues raised by this opinion and its predecessor. Watch my blog for an announcement.
All Rights Reserved Beverly Michaelis 2017.
In late October, the Washington State Bar Association Committee on Professional Ethics issued Advisory Opinion 201601, “Ethical Practices of the Virtual Law Office.” What did they have to say? Let’s find out.
Lawyers in Washington are not required to have a physical office address under association bylaws, admission and practice rules, the rules of civil procedure, or Washington Rules of Professional Conduct:
In other words: full steam ahead virtual law practitioners!
Virtual practitioners remain bound by standards of ethical conduct and must take care with the duties of supervision, confidentiality, avoiding misrepresentation, and avoiding conflicts of interest. Next week we’ll tackle practical advice in each of these areas.
Nothing. Or very little.
We don’t have an opinion specifically allowing virtual law practice, nor do we have an opinion disallowing it. And odds are, you won’t see anything on this front soon. If you have questions, contact OSB General Counsel.
In 2010 I gave a preview of my unbundling article, which included a discussion about virtual law offices. A bit has changed since then:
The other advice in this original post still applies. Oregon lawyers would do well to follow the guidance given our colleagues in Washington. Take care with supervision, confidentiality, avoiding misrepresentation, and conflicts of interest. Next week I’ll tackle each of these and provide practical pointers.
For more background on Advisory Opinion 201601, see this post on NW Sidebar.
All Rights Reserved Beverly Michaelis 2017
Inserting file names and paths into documents is a common practice in many law offices, but does it reveal confidential client information?
First Things First: What is a File Pathname?
A file pathname shows the name given to a document and its unique location on your computer or network. A typical example would be: C:\\Users\User Name\Location\Document Name.type (docx, xlsx, pptx). In a law firm, file pathnames might include the client name, client number, matter name, or matter number: C:\\Users\Susan User\Client Smith J 03\Smith Matter 10\Petitioner’s RFP.docx.
As these examples illustrate, “file pathname” is actually a convergence of the file name and the path. In Word, select the Insert tab, choose Quick Parts, then select Field. In the Fields List, scroll down to “FileName,” and under Field Options on the right, select the box “Add path to Filename.”
Most users insert file pathnames at the end of a document or in the footer. In some cases this step is automated via a template or macro.
Remember: file pathnames represent your scheme for naming and storing documents. If you include them on every outgoing document, you may be revealing confidential or private information. It depends on your document naming convention.
In the example above, “Smith Matter 10” is part of the file pathname. If I include this information on a document sent to an opponent, have I just telegraphed that Smith has 10 pending files? Or one open file and nine closed files? Does this open a line of inquiry for my opponent at Smith’s deposition? Am I being paranoid? Maybe, maybe not. And perhaps most recipients wouldn’t look closely enough to even notice.
The file pathname also shows which user in the office created the document and precisely where the document is stored. With data breaches nearly a daily occurrence, is this the electronic equivalent of drawing a map to your hidden wall safe and leaving it in your house for a would-be burglar?
I am not suggesting that inserting a file pathname is the number one scourge of today’s law office, placing business and client information at risk. I do question why we would even take the chance…
Why indeed?
I have never used file pathnames in documents. They bother me. I know many users feel they can’t live without them: simply refer to the document and it will reveal where it can be found. I can only equate it to the strong feelings people have when debating the virtues of Mayo. vs. Miracle Whip (Mayo, hands down) or the Non-serial comma vs. the Oxford comma (Oxford comma now and forever).
If you’re paper-based, I suppose this makes some sense. If I pull Smith’s paper file and want to find the Petitioner’s RFP (Request for Production) on my computer, it may be helpful to reference the file pathname: C:\\Users\Susan User\Client Smith J 03\Smith Matter 10\Petitioner’s RFP.docx. I then know where to look on the C: drive.
Personally, I’ve never seen anyone use this technique. But it could be done.
If your office is paperless, you would never attempt this. After all, if you knew the name of the document and exactly where it was stored, you wouldn’t be looking for it, right?
If you are paper-based and regularly rely on the file pathname as a means to locate documents on your computer, I’d like to hear from you. My instinct tells me that inserting file pathnames is one of those things “we’ve always done,” which is why users keep on doing it. (Versus, the file pathname is routinely used to look up the digital version of a document.)
Some offices try to balance the concern of protecting client confidentiality by asking users to remove file pathnames in situations where the information may be too revealing. I find this approach too bothersome: (1) Deleting the file pathname (or not) is a judgment call by the individual user; (2) Individual users are human and make mistakes – especially when rushing to meet a deadline; (3) Automated systems promote forgetfulness: if the file pathname is inserted via a macro/template the user must “remember” to manually delete it in sensitive situations.
Best practices dictate a single, consistent approach: use file pathnames or don’t use file pathnames. My recommendation: it’s a no-brainer to leave the file pathname out. No one has to make a judgment call, no one has to remember to insert it or remove it, no one has to learn how to override the settings of an automated template. And no information is revealed about your client, his or her matters, the document creator, or the deep recesses of your network where the document resides.
Since the rationale for inserting file pathnames is to help users find documents, consider adopting practices that address the underlying problem:
Whether you insert a file pathname or not, the same information is contained in your document’s metadata. There’s some food for thought! So don’t forget about metadata removal.
“File Save As PDF” or “File, Publish to PDF” does not remove metadata, it simply converts it. Use “File, PRINT to PDF,” “File, Save Without Metadata” (WordPerfect), “File, Check for Issues > Inspect” (Word), or “Remove Hidden Information or Sanitize Document” (Acrobat). For more information on printing to PDF, see How to Strip Metadata in Two Easy Steps.
[All Rights Reserved 2016 Beverly Michaelis]
Happy Monday! Recently I’ve been featuring content from the Solo & Small Firm Section Conference. Today is no exception.
Barron Henley of Affinity Consulting was a conference headliner. His breakout session, “Exchanging Documents Electronically – How to Protect Yourself,” is a topic we all need to be savvy about. If you’re a Word, Acrobat, Foxit, Workshare, or OmniPage user you’ll appreciate what Barron had to say.
If you’ve been following this series you know I like to share a few tidbits up front so you have a sense of what the speaker(s) covered. A link to the complete collection of tips appears here. Enjoy!
All Rights Reserved 2016 Beverly Michaelis
