Wednesday, May 02, 2007

Formal Ethics Opinion on Client Records

An article in the April, 2007 issue of the "Lawyer's E-Newsletter", sent by The Disciplinary Board of the Supreme Court of Pennsylvania to members of the Pennsylvania Bar, announced issuance by the Pennsylvania Bar Association's Committee on Legal Ethics and Professional Responsibility, of its Ethics Opinion 2007-100 (9 pages, PDF), entitled "Client Files – Rights of Access, Possession, and Copying, along with Retention Considerations".

The Newsletter's article identified this Ethics Opinion as "a major formal opinion addressing several issues that arise out of the recurrent problem of file management."

This nine-page opinion thoroughly examines the law of Pennsylvania on issues such as what constitutes the lawyer’s file, who owns different parts of the file, what a lawyer’s responsibilities are for providing file materials to a client, and how the cost of doing so should be allocated.

It is far beyond the scope of this newsletter to recapitulate the reasoning and conclusions of such a comprehensive tract; any Pennsylvania lawyer who handles client files should read the opinion itself and carefully digest its analysis.
The public announcement on the Disciplinary Board's website, under the heading "PBA Issues Ethics Opinion on File Management", is far briefer than the Newsletter's article, mentioning no details, but supplying a link to the full Ethics Opinion:
The Committee on Legal Ethics and Professional Responsibility of the Pennsylvania Bar Association has issued Formal Opinion 2007-100 regarding “Client Files – Rights of Access, Possession, and Copying, along with Retention Considerations.”

This opinion examines the legal and ethical status of client files and records in light of Maleski v. Corporate Life Insurance Co., 163 Pa. Commw. 36, 641 A.2nd 1 (1994) and subsequent actions in other jurisdictions, along with newer considerations such as complicating factors arising from the use of email and electronic documents. The opinion is posted here.
Since the longer Newsletter article was distributed publicly, I believe it is appropriate -- as a service to the Bar & to Pennsylvanians -- to quote directly from it:

The opinion begins with the principle that “client files are maintained by a lawyer for the benefit of his or her principal, the client.” The Commonwealth Court case of Maleski v. Corporate Life Ins. Co., 163 Pa. Commw. 36, 641 A.2d 1 (1994), states a general principle that "once a client pays for the creation of a legal document, and it is placed in the client's file, it is the client, rather than the attorney, who holds a proprietary interest in that document." However, the Supreme Court of Pennsylvania has not spoken definitively on the issue of ownership of the file.

The Committee notes that the file materials are also essential business records of the lawyer. It identifies two separate issues regarding file possession and access: access to the file by the client while the representation is ongoing, and possession of the file after the representation ceases. It states a general rule that “items such as original client business records, deeds and other real estate records, estate papers, insurance policies, and personal papers should be returned to the client unless there is a specific agreement or other reason for the lawyer to retain custody.”

The second section of the opinion deals with what constitutes the “client file.” Primary documents establishing the events of the client’s case, such as pleadings, documentary evidence, and correspondence are clearly a main component of the file. However, “other documents relating to that particular representation, such as electronic mail messages, telephone notes, research notes, [and] billing materials” may also be part of the file, and these may exist or be stored in locations other than the physical folders of the file. There may also be internal documents arising from “administrative functions involved with running a law practice (such as assignment memos given to subordinate lawyers).” In an age of electronic practice, there may be e-mail, computer files, and other documents stored in multiple locations and with small variations between different recipients. The Committee notes that some items may not be part of the file, such as “memoranda and notes generated primarily for a lawyer's own purposes in working on the client's problem.” In light of such complexity, the Committee acknowledges that “it is nearly impossible to define on a priori basis what must be part of the client's file.”

As to who owns what in this mass of material, the Committee notes that there are two major points of view: a majority view is called the “entire file” view, which holds that “client is entitled to everything in the lawyer’s possession necessary to the continued representation of the client,” and a minority called the “limited file” view, holding that the client is only entitled to “core” materials, such as filed pleadings, correspondence and final memoranda on issues significant to the representation.” The Committee considers the majority “entire file” view as the prevailing rule in Pennsylvania.

In the third section of the Opinion, the Committee turns to the question of who bears the cost of making necessary copies of the file. The Committee recognizes that the terms of the client-lawyer agreement may shape the lawyer’s responsibilities. It notes,

Client requests for file materials, or copies of file materials, can arise in at least three separate contexts: (1) during the course of representation; (2) during transfer of representation between counsel; and (3) following representation.

The Committee believes that, in each of these contexts, the cost of copying and delivering file materials, as well as the cost of compiling and delivering the actual file, should be handled according to the agreement between the lawyer and the client regarding costs. The Committee recommends making some provision for these circumstances in an engagement letter.

The Committee affirms that generally the lawyer does have a right to make and retain copies of the file for the lawyer’s own use, but echoes Maleski in concluding that “where the client has paid for the creation of the file, the cost of the lawyer’s copy should be borne by the lawyer, absent agreement to the contrary.”

The core of the opinion lies in two compact summaries of its reasoning the Committee provides. On Pages 6-7, the Committee provides, in bold-faced type, a list of eight kinds of items it considers to be parts of the file to which the client is entitled:

  1. briefs, pleadings, discovery requests and responses;
  2. transcripts;
  3. affidavits and witness statements;
  4. memoranda of law, case evaluations, or strategy memoranda;
  5. correspondence (including e-mail);
  6. original documents with legal significance, such as wills, deeds and contracts;
  7. documents or other things delivered to the lawyer by or on behalf of the client; and
  8. invoices or statements sent to the client.

The Committee then specifies, on Page 7, five kinds of documents to which the client may not be entitled:

  1. drafts of any of the items described above, unless they have some independent significance;
  2. attorney notes from the lawyer’s personal files, unless those notes have been placed by the attorney in the case file because they are significant to the representation;
  3. copies of electronic mail messages, unless they have been placed by the attorney in the file because they are significant to the representation;
  4. memoranda that relate to staffing or law office administration;
  5. items that the lawyer is restricted from sharing with the client due to other legal obligations (such as “restricted confidential” documents of a litigation adversary that are limited to counsel’s eyes only).

The opinion closes with a set of six recommendations for file management policies:

  1. developing a detailed file storage, management, and retention policy;
  2. a lawyer or lawyer's assistant (with supervision) making decisions as to how and when to destroy part or all of the file;
  3. considering statutes of limitations, substantive law, tolling agreements or tolling jurisprudence, the nature of the particular case and the client's particular needs when deciding to destroy a file;
  4. client confidentiality obligations continue after the representation ends and should be taken into account in file disposition;
  5. an index should be maintained regarding all files destroyed or returned to clients; and
  6. the lawyer and client can consider a specific agreement for handling the client file and data in complex cases.

The Newsletter article concludes with this caveat, which I repeat for purposes of this posting, too.

Understand that this is a brief and oversimplified summary of a detailed and nuanced analysis, and no one should take this summary as a substitute for reading the opinion and carefully evaluating the many considerations it identifies in the increasingly complex process of file management.

The Committee has put a great deal of thought and effort into providing Pennsylvania practitioners with detailed guidance, and members of the bar who handle client files would be wise to benefit from this guidance.

Update: 05/03/07:

On May 3, 2007, I received an email message from Edwin R. Frownfelter, Esq., who serves as Disciplinary Counsel, and also as the Disciplinary Board's Website Manager & Newsletter Editor. He expressed appreciation for posting the article, and further noted, "We will probably update the website newsroom with the new items within a few days."

He noted finally: "Credit for the Opinion, of course, goes to the PBA Committee, which did a very thorough job."