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New Survey Cautions Lawyers to Avoid Conflicts and Be Aware of Cyber Events

It seems there is no end to the questions involving the client’s file and who has a right to it. Texas has a new ethics opinion on the subject, addressed at the end of this article, but let’s first address some of the many questions about the client’s file that have already been answered.

First, the file belongs to the client, not the lawyer. This is true regardless of whether the lawyer is being paid on a contingent fee, an hourly fee, or is handling the matter pro bono. And the client has an absolute right to the file upon request, at no cost to the client. The law is unclear on whether the lawyer must pay to have the file shipped to the client. Most jurisdictions limit the lawyer’s obligation to making the file available for pickup at the lawyer’s office. This is obviously less of a problem in the digital era.

The client is entitled to the entire file, including attorney’s notes and research memoranda. Any cleansing or purging of the file prior to production to the client is an ethical violation. The client is not usually entitled to communications of the law firm discussing and evaluating possible conflicts of interest if those communications represent the attorney-client privileged communications of the law firm with its in-house general counsel or with outside counsel, but everything else associated with the client’s file belongs to the client and the refusal to give it to the client is an ethical violation.

The client is entitled to the original of the file, not a copy. This includes not only the original hard-copy of the file, it also includes all digital and electronic data associated with the file. To the extent that the file consists of digital or electronic data, the client is entitled to the dat in its native format, with all Meta-data attached. Absent a billing dispute, however, the client is typically not entitled to the firm’s raw data on billing entries or draft bills.

The client’s entitlement to the file is not satisfied by the lawyer sending the client copies during the course of the representation. Although this is a good idea, it does not eliminate the lawyer’s obligation to surrender to the client the entire original file upon request.

Texas common law recognizes a charging lien in favor of an attorney on the client’s file which may be asserted if the client has failed to pay fees owed to the lawyer. A Texas ethics opinion prohibits, however, the assertion of this lien on the file if the client would be prejudiced by not having access to the file. If the representation has been concluded and there is no rational reason why the client needs the file, a lawyer might be able to assert this lien and avoid an ethical violation, but the safer approach is to never assert this lien and deny the client access to his/her file.

The lawyer is entitled to retain a copy of the file, at the lawyer’s expense, but may not charge the client for the cost of making a copy to retain. It is obviously a good idea for the lawyer to retain a copy of the file, since requests for the file often are accompanied by client complaints against the lawyer.

The lawyer is expected to retain the original file and have it available for the client upon demand. There is no specific requirement for retention of a client’s file, other than portions of the file involving the trust account. Trust account records must be maintained for a minimum of 5 years. Best practices suggest that the file should be maintained at least until any claim against the lawyer would be barred by limitations. Many lawyers believe that 2 years is an adequate time to satisfy this requirement, but a strict two-year file retention/destruction policy ignores the many possible extensions of the limitations deadlines, such as claims involving minors, claims for fraud or breach of fiduciary duty, the discovery rule and the Hughes tolling rule. A much better practice is to set a destruction date for files on a file-by-file basis. Remember that this file belongs to the client and you have no authority to destroy it absent client consent. Best practices suggest that you secure consent to the firm’s file destruction deadline at the conclusion of the representation, so the client can request a copy at that time if desired. Otherwise, you risk destroying something you do not own as the client may be hard to locate years later.

Okay, now for the new Ethics Opinion.  It is No. 670, issued March 2018. And it deals with the issue of lawyers changing jobs. Everyone knows that when a lawyer leaves a firm, the lawyer’s clients decide whether to have their open files follow the departing lawyer to the new firm. But can the lawyer copy and take with her those files on which she worked at the old firm even though the client is not transferring the file with the lawyer to the new firm? In a world of increased lawyer mobility, this has become an important question.

The old firm typically seeks to prohibit departing lawyers from taking copies of client files when they leave, claiming that to do so would be unethical and violate the clients’ expectations that their confidential information will remain at the old firm. In contrast, departing lawyers claim that they need copies of their own work product for forms to benefit future clients and to answer any questions that might arise in the future from the former client.

This ethics opinion resolves this issue in favor of the departing lawyer, with the following language:

“Under the Texas Disciplinary Rules of Professional Conduct, a lawyer who leaves a law firm may, at the lawyer’s expense, make and retain copies of former clients’ documents generated in matters in which the lawyer personally represented the clients. The lawyer must, however, comply with his obligations under the rules to preserve the confidentiality of such documents by preventing the former clients’ confidential information from being improperly used or revealed to others”

Once again, best practices would suggest that the departing lawyer – and probably also the old law firm -notify the clients whose information is being copied and commit to those clients that the confidentiality of their information will be preserved and protected in accordance with Rule 1.05.