Ethically Speaking
| Jurisdiction | Wyoming,United States |
| Citation | Vol. 28 No. 1 Pg. 2 |
| Pages | 2 |
| Publication year | 2005 |
Vol. 28, No. 1 #2 (February 2005). ETHICALLY SPEAKING
February 2005/Vol. XXVIII, No. 1
Several years ago, an article entitled "Ownership, Access, and Retention of Client Files" appeared in this column.(fn2) Since then, the issues raised and discussed in that article have not gone away, nor are they going to, and requests for reprints of the article are common. While the gist of that article remains correct, and a lawyer who follows its recommendations should not run afoul of legal or ethical duties, an update seems worthwhile. Accordingly, this article is an updated version of that one.
Lawyers acquire and create mountains of information about clients, usually stored in client files. At one time, such files were filled with paper. Now, more and more client information is stored electronically. Whatever its form, the existence of that information raises vital questions. First, who owns it? Second, who has access to it and under what conditions? And third, what should be done with the information after the attorney-client relationship ends? That is, how and how long must it be retained? The Wyoming Rules of Professional Conduct do not, unfortunately, provide clear answers to any of those questions, nor do Wyoming statutes or case-law.
Before addressing specific issues of ownership, access, and preservation of client information, it is useful to consider an attorney's general obligations regarding client information. From those duties the answers to the questions flow fairly logically.
Legal and Ethical Background
An attorney is an agent for each client that the attorney represents.(fn3) As an agent, the attorney is a fiduciary for the client, the principal.(fn4) The lawyer must, therefore, work "primarily for the benefit" of the client; in doing so, the lawyer owes the client a variety of legal duties, including duties to treat the client fairly, account for financial matters, not compete with the principal, communicate with the principal, and maintain confidentiality of information regarding the agency.(fn5) These duties are very similar to the lawyer's ethical duties, and they relate directly to the issues of ownership, access to, and preservation of client information.
A "fundamental principle" of the attorney-client relationship is that an attorney must preserve a client's reasonable expectation of privacy.(fn6) That obligation has roots both in the law of agency(fn7) and the rules of professional conduct.(fn8) It encompasses all information "relating to" representation of a client, regardless of its source or when it is learned.(fn9) With limited
exceptions,(fn1°) therefore, a lawyer "shall not" disclose information which relates to the representation without the client's informed consent. That obligation never ends; after the termination of the attorney-client relationship, the duty of confidentiality continues indefinitely.(fn11) In addition to preserving the confidentiality of information regarding former clients, a lawyer may not use information "to the disadvantage" of a former client unless such information "has become generally known."(fn12) Finally, when the relationship ends, a lawyer must "take steps" to protect the client's interests and "surrender[] papers and property to which the client is entitled . .
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Another fundamental principle is that a lawyer must communicate with his or her clients. A lawyer must "keep a client reasonably informed about the status of a case and promptly comply with reasonable requests for information."(fn14) The only time a lawyer may ethically withhold relevant information from a client is "when the client would be likely to reach imprudently" to immediate disclosure, as in the case of a psychiatric diagnosis.(fn15) In such a case, although the lawyer "may be justified in delaying transmission of information," the information, ultimately, must be furnished.(fn16) The only exception is that a lawyer appointed as a guardian ad litem for an individual "may withhold information when the attorney reasonably believes that communication of the information to the individual would not be in the individual's best interests."(fn17) While the rules thus address delaying transmission of or withholding information from a current client, they do not address a lawyer's obligation of providing information to a former client.
As a fiduciary, a lawyer who possesses a client's property must keep it separate and safe. Client funds must be kept in a trust account.(fn18) Other types of property must be "appropriately safeguarded."(fn19) Further, when a lawyer comes into possession of property or funds which belong to a client, the lawyer must "promptly notify"(fn2°) the client and "promptly deliver"(fn21) the property to the client or a person designated by the client. In addition, lawyers must keep records of all activities involving client property. A complete accounting of client funds and/or property must be maintained by the lawyer "for a period of five years after termination of the representation."(fn22)
Finally, at the termination of the relationship, a lawyer is to "surrender[] papers and property to which the client is entitled . . . . [but] the lawyer may retain papers relating to the client to the extend permitted by law."(fn23) The question becomes, therefore, what is the extent permitted by law?
In Wyoming, the law is largely silent on client information. The only directly relevant statute involves attorneys' liens. To secure payment of professional fees, an attorney in Wyoming has a lien on "papers or money of his client which have come into his possession."(fn24) That lien does not, however, attach to monies received for child support because such funds belong to the minor child, not the custodial parent.(fn25)
The principles expressed in the Wyoming Rules and statutes do not, ultimately, answer the questions. Who owns client files? Who has access to them, especially who has access after the termination of the...
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