Opinions

Ethics Opinion 357

Former Client Records Maintained in Electronic Form

The question presented is whether a lawyer who maintains some or all of a former client’s records solely in electronic form must provide the former client with paper copies of such records if requested by the former client and, if so, whether the lawyer may charge the former client for providing the files in paper form.

As a general matter, there is no ethical prohibition against maintaining client records solely in electronic form, although there are some restrictions as to particular types of documents. Lawyers and clients may enter into reasonable agreements addressing how the client’s files will be maintained, how copies will be provided to the client if requested, and who will bear what costs associated with providing the files in a particular form; entering into such agreements is prudent and can help avoid misunderstandings. Assuming no such agreement was entered into prior to the termination of the relationship, however, a lawyer must comply with a reasonable request to convert electronic records to paper form. In most circumstances, a former client should bear the cost of converting to paper form any records that were properly maintained in electronic form. However, the lawyer may be required to bear the cost if (1) neither the former client nor substitute counsel (if any) can access the electronic records without undue cost or burden; and (2) the former client’s need for the records in paper form outweighs the burden on the lawyer of furnishing paper copies. Whether (1) a request for electronic files to be converted to paper form is reasonable and (2) the former client’s need for the files in paper form outweighs the lawyer’s burden of providing them (such that the lawyer should bear the cost) should be considered both from the standpoint of a reasonable client and a reasonable lawyer and should take into account the technological sophistication and resources of the former client.

Applicable Rules:

Rule 1.4(a) – Communication

Rule 1.6(a)(1) and (f) – Confidentiality of Information

Rule 1.15(b) – Safekeeping Property

Rule 1.16(d) – Declining or Terminating Representation

Inquiry

After the termination of a lawyer’s representation of a client, the former client requested that the lawyer deliver to the former client all of the former client’s files. The lawyer stated that the files were maintained solely in electronic form and offered to deliver them to the former client in electronic form on a CD-ROM. The former client responded by requesting that the lawyer produce the files in paper form, with the lawyer bearing the cost of converting the files from electronic to paper form. The lawyer asks whether (a) he must convert the electronic files to paper form; and (b) if so, whether the lawyer must bear the cost of converting the files to paper form.

Discussion

1. Maintenance of Client Records in Electronic Form

Lawyers and clients may enter into reasonable agreements addressing how the client’s files will be maintained, how copies will be provided to the client if requested, and who will bear what costs associated with providing the files in a particular form. For example, a lawyer may require that a client seeking representation consent, as a condition of the representation, to the lawyer’s maintenance of his or her records solely in electronic form, so long as this method of maintaining the files would not result in foreseeable prejudice to the client. See Virginia Ethics Opinion 1818 (Sept. 30, 2005). (A prospective client, of course, is free to seek out counsel who does not impose such a requirement.) As with other aspects of the lawyer-client relationship, it is prudent to address such issues in advance where possible in order to avoid later misunderstandings and disputes.

The inquiry here, however, does not state how the lawyer’s files came to be in electronic form only, or whether this was the result of any discussions or agreement with the former client. Accordingly, we begin with some discussion of the use of electronic records for current and former clients. We see nothing in the ethics rules that prohibits establishing and maintaining most types of client records in electronic form. While the rules contemplate that lawyers will establish and maintain appropriate files relating to the representation of a client, the rules do not prescribe the form in which files must be kept. See, e.g., D.C. Rules 1.8(i), 1.16(d).

Indeed, it is common today for lawyers to maintain many records relating to a client representation solely in electronic form. By way of example:

  • Emails and attachments: Much communication between lawyers and clients and between lawyers and opposing counsel takes place by email. Emails and attachments to emails may or may not be printed out for a paper file.
  • Pleadings: Many courts now require that pleadings be filed electronically, usually in PDF format, and lawyers may maintain the pleadings file in electronic form. A lawyer may draft a pleading electronically in a word processing program, convert it to PDF, and file it without ever printing out the pleading. Similarly, a lawyer served with a pleading electronically may elect to save it solely in electronic form.
  • Document production: It is very common for documents produced in litigation to be provided solely in electronic form, commonly in PDF format or as .tif images. A lawyer receiving documents produced in electronic form may review them electronically as well. Similarly, many corporate clients gathering documents for possible production in response to document requests will provide such documents to their lawyers in electronic form, after which the lawyers may review the documents in electronic form for possible responsiveness to the requests.
  • Databases: Particularly in cases involving large volumes of documents, it is common for electronic databases to be created containing information about those documents. Lawyers may run searches and generate reports based on those searches, but it would be unusual for the entire contents of such a database to be printed out in hard copy form.

Use of electronic records can reduce costs for lawyers and clients through reduced file maintenance and storage costs and through the increased efficiency that may result from being able to access the records electronically rather than through physical access. Clients may maintain their own records solely in electronic form as well, and some clients require their lawyers to provide them with pleadings and other documents in electronic form wherever possible.

Electronic client records are also sometimes created when the records are initially received or created in paper form, but the paper files are later converted to electronic form, typically by scanning them. Such conversion raises the question whether the paper documents may be destroyed or discarded after the electronic versions are created. Initially, we note that certain types of documents should not be destroyed. For example,

  • A lawyer must retain in paper form a client’s intrinsically valuable, original paper documents, such as securities, negotiable instruments, deeds, settlement agreements, and wills. See D.C. Rule 1.15(a) (client property other than funds “shall be identified as such and appropriately safeguarded”); D.C. Legal Ethics Op. 283 (1998) (stating that “it would be unethical for a lawyer to destroy valuables contained in a client file” and identifying “securities, negotiable instruments, deeds, settlement agreements, and wills” as property “that has intrinsic value or directly affects valuable rights”).[1]
  •  “A lawyer should use care not to destroy any document which the lawyer has a legal obligation to preserve.” Id.
  •  “A lawyer should use care not to destroy or discard original documents provided by the client when they are not otherwise filed or recorded in the public records.” Id.
  • A lawyer should preserve the original paper document if an electronic version of the document would fail to “protect the [current or former] client’s interests.” D.C. Rule 1.16(d).
  • Paper documents that the client has provided to the lawyer should not be destroyed unless the current or former client does not want the documents returned and consents to their destruction.[2] See D.C. Rule 1.4(a) – Communication (“A lawyer shall keep a client reasonably informed about the status of a matter”). [3] However, such documents should not be destroyed if they fall in one of the first four categories of documents set forth above.

Subject to the above exceptions, a lawyer may convert a client’s file into electronic form and destroy the paper files if he has reasonably concluded that the paper version is not needed for his ongoing representation of a current client.[4] The lawyer should bear in mind that if he or she does destroy paper files, he may in some cases, absent agreement with the client to the contrary, be required in the future to provide the electronic records in paper form at the client’s request and possibly at the lawyer’s expense, as discussed further below.

Lawyers who maintain client records solely in electronic form should take reasonable steps (1) to ensure the continued availability of the electronic records in an accessible form during the period for which they must be retained[5] and (2) to guard against the risk of unauthorized disclosure of client information. See D.C. Rule 1.6(a)(1); see also D.C. Rule 1.6(f) (“A lawyer shall exercise reasonable care to prevent the lawyer’s employees, associates, and others whose services are utilized by the lawyer from disclosing or using confidences or secrets of a client.”).

2. A Lawyer’s Obligations Regarding Providing a Former Client with Records Maintained Solely in Electronic Form

A lawyer is ethically obligated, upon reasonable request, to provide a former client with the former client's files. See D.C. Rule 1.15(b) ("Except as stated in this rule or otherwise permitted by law or by agreement, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive … ."); D.C. Rule 1.16 ("In connection with any termination of representation, a lawyer shall take timely steps to the extent reasonably practicable to protect a client's interests, such as . . . surrendering papers and property to which the client is entitled … .") (emphasis added). See generally D.C. Legal Ethics Op. 283 (1998). As discussed above, client files often include electronic records, so the duty to provide the former client's files will often extend to electronic records. (When turning over electronic records, care must be taken to avoid providing documents or metadata that would reveal confidences of a different client.)[6] The inquiry here relates to the lawyer's obligation when some or all of the former client's files are maintained solely in electronic form and the former client requests that they be provided in paper form. Specifically, must the lawyer provide such records in paper form, and if so, who must pay for the conversion to paper?[7]

As noted earlier, lawyers and clients may enter into reasonable agreements regarding issues such as how records will be kept, how copies may be provided to the client, and who will pay the costs of converting electronic records if the client seeks to get them in paper form. The inquiry here, however, suggests that there was no such agreement between the inquirer and the former client.

In the absence of an agreement, whether the lawyer must provide the electronic records in paper form depends on whether the request for the paper version is reasonable. In general, such requests will be reasonable, though there will doubtless be instances where it would impose an unreasonable burden on the lawyer, even if the former client is willing to pay for the conversion to paper form.

If the request to provide the electronic records in paper form is reasonable, the issue of who should pay for the conversion to paper form depends on the facts and circumstances, and the answer may vary for different categories of records. In most cases, if the records were properly maintained in electronic form, but the former client has requested the records in paper form, the former client should bear the cost of converting the records to paper form. This is particularly so with respect to records that are “not necessary to protect [the] client’s interests,” as to which the former client should bear the cost of conversion. See D.C. Legal Ethics Op. 283 (1998). With respect to other types of electronic records, the lawyer should bear the cost of providing the records in paper form if (1) neither the former client nor substitute counsel (if any) can access the electronic records without undue cost or burden; and (2) the former client’s need for the records in paper form outweighs the burden on the lawyer of furnishing paper copies.[8]

Whether (1) a request for electronic files to be converted to paper form is reasonable and (2) the former client’s need for the files in paper form outweighs the lawyer’s burden of providing them (such that the lawyer should bear the cost) should be considered from the standpoint of both a reasonable client and a reasonable lawyer. The technological sophistication and resources of the client should also be taken into account.[9] It is not possible to provide a bright line test, but the analysis can be illustrated with some examples:

  • In litigation, 25 million pages of documents were produced to the lawyer in electronic form by another party. The electronic records are a standard format, such as .tif. The lawyer never received the documents in paper form. Although the lawyer printed some documents for specific purposes (such as for use as exhibits), the lawyer had no occasion to print the entire set of documents in paper form. The former client requests that the lawyer print all of the documents in paper form. The costs of printing would be substantial. In addition, printing all of the documents would require substantial time of the lawyer’s staff and would be extremely disruptive to the operations of the lawyer’s office. The former client’s request is not reasonable, even if the former client offers to pay for the costs of printing. Rather, it would be sufficient for the lawyer to provide a copy of the documents in electronic form to the former client, [10] after which the former client could arrange and pay for printing if the former client so desired.
  • The lawyer created an extensive database containing information relating to millions of pages of documents produced in litigation. The lawyer generated certain reports from the database in paper form, but never had any reason to print the entire database in paper form. The database was created using proprietary software developed for the lawyer’s firm. The former client requests that the database be provided in paper form. As with the other examples, there is no agreement between the lawyer and the former client with respect to converting electronic records to paper form or with respect to converting electronic records from one electronic format to another. Because the database is only accessible with proprietary software, the lawyer offers to convert it to a format that can be used with non-proprietary database software, at the lawyer’s expense. Because the database is voluminous and the former client would have the ability to access it in a non-proprietary format, the lawyer need not provide the database in paper form. 
  • The former client is an individual who has not retained substitute counsel because she intends to represent herself pro se in a pending proceeding in which a hearing is scheduled in the near future. The former client needs the lawyer’s file to represent herself but has no access to a computer. The lawyer’s electronic file, if printed, would consist of several hundred pages. Under these circumstances, the former client’s need for the paper copies is significant and the burden on the lawyer to provide the records in paper form appears to be minimal. Therefore, the lawyer should bear the cost of providing the file to the former client in paper form.[11]
  • The lawyer has provided the former client with the client’s file in electronic form. The former client has a computer and printer, but does not have the software necessary to view the lawyer’s electronic records. The former client has a significant need for the records. The lawyer offers to provide the former client with the necessary software at the lawyer’s expense. The former client is capable of installing the software, and the former client’s computer is capable of running the software. Under these circumstances, the lawyer is not obligated to pay the cost of converting the any of the electronic records to paper form.

Even if the lawyer must bear the cost of converting the electronic records to paper form, however, the lawyer may charge the former client for the reasonable time and labor expense associated with locating and reviewing the electronic records where such time and expense results from special instructions or requests from the former client. See D.C. Legal Ethics Op. 283 (1998) (“review of the files is being undertaken for the benefit of the client and, like other forms of client services, may be compensated by a reasonable fee”).[12]

In circumstances where the lawyer is permitted to charge the former client either for time and expense associated with either converting electronic records to paper form at the former client’s request or for time and expense associated with locating, reviewing, and preparing records in accordance with the former client’s instructions, the lawyer should inform the former client in advance that the former client will be charged and explain the basis on which the former client will be charged.

Conclusion

Lawyers may maintain many types of client records solely in electronic form, but need to be aware of restrictions as to particular types of documents. Lawyers and clients may agree to reasonable provisions relating to electronic records and requests for conversion to paper form. Absent such an agreement, a lawyer must comply with a reasonable request by a former client to provide electronic records in paper form. In most cases, the former client should bear the cost of converting to paper form any records that were properly maintained in electronic form, but in certain circumstances the lawyer may be required to bear the cost.

Published: December 2010

[1] As noted in D.C. Legal Ethics Op. 283 (1998), if a former client cannot be located, the lawyer may be able to turn valuable property over to a third party in certain circumstances.

[2] Consent is generally not required if the representation of the client terminated more than five years earlier and the former client either cannot be found or refuses to respond to requests for instructions on disposition of the files. D.C. Legal Ethics Op. 283 (1998). See id. for further guidance on specific categories of documents that must be retained or may be destroyed.

[3] It would also be prudent for a lawyer to consult with the client before making a decision to destroy large quantities of paper documents received from other sources (e.g., documents produced by another party in discovery) that the lawyer has converted to electronic form.

[4] Opinions in several other jurisdictions have similarly concluded that, with certain exceptions, a lawyer may convert paper documents to electronic form and maintain the client’s file solely in electronic form without requiring client consent. See Missouri Ethics Opinion 127 (May 19, 2009); Maine Ethics Opinion 183 (Jan. 2004); New Jersey Ethics Opinion (April 24, 2006).

[5] See generally D.C. Legal Ethics Op. 283 (1998) for guidance on the requirements for maintaining files relating to former clients.

[6] It is common for lawyers to draft documents for one client by using, as a starting point, documents prepared for another client. When a lawyer turns over a former client’s file to the former client, the lawyer must take reasonable steps to make sure that any such material prepared for a different client or that would reveal confidences or secrets of a different client are first removed from the file. In the case of electronic records, the lawyer must also take reasonable steps to make sure that no metadata is being provided that would reveal confidences or secrets of a different client. See generally D.C. Legal Ethics Op. 341 (2007) (discussing other issues relating to metadata).

[7] The inquirer does not mention any unpaid fees. Accordingly, we do not address any issues with respect to exercise of a retaining lien under Rule 1.8(i). See D.C. Legal Ethics Ops. 230 (1994), 250 (1992), 333 (2005).

[8] Similar principles would apply to a request from a former client to convert electronic records from one electronic format to another. If the request is reasonable, the lawyer should convert the records, but in most cases the former client should pay the cost of doing so unless the burden analysis dictates otherwise.

[9] See Arizona Ethics Opinion 07-02 (June 2007) (“A lawyer who has chosen to store his or her client files digitally cannot simply hand a disk or other storage medium to a client without confirming that the client is able to read the digitized images. If the client does not have either the technological knowledge or access to a computer on which to display the electronic images, or if the client has hired substitute counsel who is in the same position as the client, the original lawyer may need to provide paper copies of the documents.”)

[10] It is common in litigation for the court to enter a protective order restricting use and disclosure of documents produced in discovery that contain confidential business information or are sensitive for other reasons. Sometimes such orders allow only counsel and experts to see the confidential documents and do not permit lawyers to share the documents with their clients. In addition, such orders often require that the adverse party’s documents be returned or destroyed when the litigation has ended. For purposes of this opinion, we assume that there are no such restrictions on the lawyer’s ability to provide documents to the former client.

[11] The District of Columbia Court of Appeals recently addressed the timeliness of a lawyer’s response to a former immigration client’s request for his file. Although the lawyer delayed only five days in providing the file, the Court found this delay to violate Rule 1.16(d) under the circumstances, because “the five-day delay represented a significant proportion of the thirty days respondent’s client had to appeal his deportation order.” In re Thai, 987 A.2d 428, 430 (2009). Moreover, during the five-day delay, the former lawyer “repeatedly denied requests for the files and actively obstructed the efforts of his former client and the successor attorney to obtain the file.” Id. The Court reiterated its prior statements that “a ‘client should not have to ask twice’ for his file,” that “the client is owed an ‘immediate return’ of his file ‘no matter how meager,’” and that “Rule 1.16(d) ‘unambiguously requires an attorney to surrender a client’s file upon termination of the representation.’” Id. at 430-31 (citations omitted).

[12] Wisconsin Legal Ethics Opinion E-00-03 (2003) advises that, although a lawyer must provide electronic documents to a client at the lawyer’s expense (which is minimal), “a lawyer may charge a client for staff and professional time necessarily incurred to search databases to identify files that contain documents that may fall within the client’s request.”

December 2010