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QUESTION:

Your firm stores client files electronically. A former client calls six months after the completion of their representation to request you provide her with her client file. Your engagement letter and fee agreement do not mention anything about file retention or production. Your firm:

A. Is obligated to provide the client file in a manner in which the client will be able to access it.

B. Is obligated to print the file and provide hard copies of all documents regardless of the circumstances.

C. Is required to load the electronic files to floppy disk for the client.

D. Is not obligated to provide the file to the client if the client has not paid her final bill.

CORRECT ANSWER: A. Is obligated to provide the client file in a manner in which the client will be able to access it.

According to a recent Missouri Informal Ethics Opinion, attorneys have a duty to provide an electronically maintained file to a client in a manner in which the client will be able to access it using “commonly used, relatively inexpensive software and hardware.” See Missouri Informal Advisory Op. 2020-09 and Missouri Formal Ethics Op. 127. Alternatively, an attorney may provide the file to the client in paper format, unless doing so would be contrary to the agreement between the attorney and the client. If a client has requested that you provide the file in a particular format, the opinion states that you should take “all reasonably practicable steps” to accommodate the client’s format request.

An attorney’s duty to maintain a client file varies from state to state. Your firm should take care to investigate fully the requirements of every state in which your attorneys practice to ensure these duties are appropriately discharged. Missouri attorneys should review Rule 4-1.22: File Retention while developing a file retention and destruction procedure. Kansas attorneys should review Kansas Legal Ethics Op. No. 15-01.

In order to avoid a client’s file format request coming as a surprise after the conclusion of the representation, you should discuss you firm’s file retention policy with the client during the intake and engagement process. This will ensure both you and client are on the same page as to your duties and the client’s expectations relating to file retention, production, and destruction. This will also provide you the opportunity to discuss the means of file storage, particularly relating to security of electronically stored information. Most importantly, having this conversation with the client at the outset of the representation will allow you to confirm in writing the client’s informed consent to any deviations from the standard file retention practices as set forth in your state’s rules of professional conduct and ethics opinions.

Regardless of where you practice, it is almost never permissible to withhold file documents from a client because of an unpaid bill. Even in the rare instances where it may be allowed, (e.g., where a client has not refunded the attorney’s out-of-pocket expenses for a deposition transcript) there may be risk management concerns that would make it unwise to withhold any documents from the client.

If you have any questions about developing and implementing an appropriate file retention policy at your firm, please contact The Bar Plan Risk Management Hotline at 1-800-843-2277, extension 171.

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