Coping With the Paper Avalanche: a Survey on the Disposition of Client Files

Publication year1987
Pages1787
CitationVol. 16 No. 10 Pg. 1787
16 Colo.Law. 1787
Colorado Lawyer
1987.

1987, October, Pg. 1787. Coping with the Paper Avalanche: A Survey on the Disposition of Client Files




1787


Vol. 16, No. 10, Pg. 1787

Coping with the Paper Avalanche: A Survey on the Disposition of Client Files

by Doris B. Truhlar and Joseph N. de Raismes

[Please see hardcopy for image]

Doris B. Truhlar, Littleton, is a partner in the firm of Truhlar and Truhlar and Adjunct Professor, University of Denver College of Law. Joseph N. de Raismes, Boulder, is Boulder City Attorney.

Imagine an assembly line of word processors, avalanching forests of paper into a bottomless sea of unrecyclable dead storage. This is a significant problem for the legal profession. Dead files often are only of minor utility, although, in some cases, they must be retained for ethical reasons.

The Colorado Bar Association ("CBA") Ethics Committee ("Committee") has received a steady stream of inquiries concerning disposition of closed client files and disposition of client files when a sole practitioner dies or is disabled. During the past few years, the Committee has advised attorneys against destruction or transfer of client files, except with client consent. The number of inquiries in this regard---as the paper morgues, vaults, and U-Store-It facilities strain at the seams---is cause for concern. Accordingly, the Committee requested that the authors conduct a survey and write this article to give general guidance to the bar.

The authors conclude that, despite ethical overtones, the disposition of client files is primarily an office management or administrative problem, rather than an ethical issue. The problem can be best resolved by effective fee agreements specifying: (1) ownership of the files in the attorney; (2) clear procedures for segregating and safeguarding client documents during the course of the representation and returning them to the client when no longer needed; and (3) contemporaneous communication to the client of important information, including copies of important documents generated during the course of the representation. The fee agreement should also specify a minimum file retention period and any notice due to the client prior to destruction of the remaining client files according to a predetermined method. Alternatively, should the client wish the additional service, the attorney should agree to maintenance and safekeeping of files which are expressly understood to constitute the property of the client according to the terms of an express bailment contract.

ETHICAL CONSIDERATIONS

The Ethics Codes

As stated by the American Bar Association ("ABA") Committee of Ethics and Professional Responsibility:

All lawyers are aware of the continuing economic burden of storing retired and inactive files. How to deal with the burden is primarily a question of business management, and not primarily a question of ethics or personal responsibility. . . . [M]ounting and substantial storage costs can affect the cost of legal services, and the public interest is not served by unnecessary and avoidable additions to the cost of legal services.(fn1)

Despite this, many lawyers keep files indefinitely, perhaps to avoid the labor costs associated with combing through the files, but primarily to preserve documents that are the property of the client and documents which contain "valuable and useful information." As the ABA cautions, unless otherwise available to the client, documents should not be "prematurely and carelessly destroyed, to the client's detriment."(fn2)

The Colorado Code of Professional Responsibility ("Colorado Code") has no rules or guidelines specifically concerning disposition of client files. Canons 9 and 4 of the Colorado Code may be consulted to deal with the ethical overtones of file disposal. The ABA/BNA Lawyers' Manual on Professional Conduct, in its practice guide relating to "record keeping," states, "Under the Model Code of Professional Responsibility, a lawyer is required to maintain [records] indefinitely."(fn3) This conclusion is apparently based upon a broad reading of Canon 9, Disciplinary Rule ("DR") 9-102 of the Model Code, entitled "Preserving Identity of Funds and Property of a Client," which simply states that a lawyer is required to:




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[m]aintain complete records of all funds, securities and other properties of a client coming into the possession of the lawyer and render appropriate accounts to his client regarding them.(fn4)

Although Canon 9 may be confined to trust funds, client documents, and other client property, both the CBA and ABA ethics committees have consistently advised that while, "[a] lawyer does not have a general duty to preserve all of his files permanently, . . . there is [no] specific time during which a lawyer must preserve all files and beyond which he is free to destroy all files."(fn5)

Canon 4, DR 4-101, of the Colorado Code, entitled "Preservation of Confidences and Secrets of Client," supplies an independent basis for analysis. In addition to bearing upon the method of disposal, DR 4-101 creates ethical concerns in the situation that arises when a sole practitioner dies or becomes incompetent. It is inappropriate without client consent for the personal representative of the lawyer's estate to examine confidential files, whether the purpose is to contact the clients and return files or to screen files and preserve important documents.

Ethical concerns exist, in part, because representation itself is a confidential matter, subject to Colorado Code Ethical Consideration ("EC") 4-2, which states a lawyer must avoid all conversations". . . if there is a reasonable possibility that the identity of the client . . . would be revealed. . . ." More ambiguously, EC 4-6 specifies the ongoing nature of the duty as follows:

The obligation of the lawyer to preserve the confidences and secrets of his client continues after the termination of his employment. Thus, a lawyer should not attempt to sell a law practice as a going business because, among other reasons, to do so would involve the disclosure of confidences and secrets. A lawyer should also provide for the protection of the confidences and secrets of his client following the termination of the practice of the lawyer, whether termination is due to death, disability, or retirement. For example, a lawyer might provide for personal papers of the client to be returned to him and for the papers of the lawyer to be delivered to another lawyer or to be destroyed. In determining the method of disposition, the instructions and wishes of the client should be a dominant consideration.

This is confusing, unless a clear distinction between lawyer papers and client papers can be made, and client papers are delivered or destroyed only with express consent. A unilateral "provision" by a lawyer for client papers to be delivered to another lawyer appears to be inconsistent with EC 4-2 in the absence of such consent. The language that "the instructions and wishes of the client should be a dominant consideration" may be interpreted to include other factors. Although it states the client's prerogatives weakly, EC 4-2 clearly requires that such instructions and wishes be known prior to any disposition, other than turning files over to the client.


Ethics Opinions

In considering whether or not to issue a formal opinion on the disposition of client files, the CBA Ethics Committee considered the opinions of other jurisdictions, which are quite varied. The principal opinion is ABA Committee on Ethics and Professional Responsibility, Informal Opinion No. 1384 (March 14, 1977). It lists eight factors to be considered in determining whether to destroy a file when guidance cannot be obtained from the client regarding disposition. These have been paraphrased by the CBA Ethics Committee in informal correspondence as follows:

1. A lawyer should not, without the client's express consent, destroy or discard original documents, or other items that clearly or probably belong to the client and that the client could reasonably expect to be returned.

2. A lawyer should not destroy or discard information that the lawyer knows or should know may be necessary or useful in the assertion or defense of the client's position in matters for which the applicable...

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