Opinion #185. Lawyer's Retention of Closed Files in CD Format and Business Proposal for Scanning Other Law Firm's Closed Files to CD Format

Issued by the Professional Ethics Commission

Date Issued: April 1, 2004

Question

An attorney proposes to start a business storing legal files for other attorneys and law firms. The business plan is to scan documents onto CD format after culling the files for documents that have intrinsic value in their original version. The attorney asks two questions:

  1. After originals of intrinsic value are culled and the remainder of the file scanned onto CDs, may the tangible file then be destroyed?

  2. May non-attorney employees of the business, consistent with the Code of Professional Responsibility, perform such tasks for the business as scanning documents onto CD format, reviewing the CDs, and certifying the CDs as true records of the files?

Opinion

The first question is whether tangible documents in a file can be destroyed after certain originals are culled and kept and the remainder scanned onto an electronic format. The answer is a qualified “yes”. The principles governing retention of records in an electronic, as opposed to a tangible format are outlined in Opinion #183 (1/28/04).

“[T]he attorney must be mindful that the obligation to the client may require the attorney to maintain the means to provide copies of those records in a format that will make them accessible to both the attorney and the client in the future.”

Assuming that the proposed file storage on CDs, or on any other electronic format, complies with Opinion #183, then the tangible file may be destroyed. [1]

The second question lists various tasks that the employees of the file storage business might perform and asks whether having non-attorney employees perform those tasks would compromise any ethical rules. Initially, the Commission notes that while the provisions of the Code are binding on all attorneys, including the attorney proposing to operate the file storage business, primary responsibility for file maintenance and disposition lies with the attorney employed by the client, not with the attorney operating the storage business. See, e.g., Opinion #74, supra, and Opinion #143 (7/26/94). In fact, for this purpose, it matters little that the file storage business itself is owned and/or operated by an attorney.

What does matter is that the file storage business will be retained by attorneys or law firms to accomplish tasks that are part of the attorney’s or firm’s practice of law. Attorneys frequently contract with outside businesses in the course of rendering legal services, such as copying or printing firms. Rule 3.13(c) describes an attorney’s responsibilities for non-lawyer assistants, while Rule 3.6(h)(2) requires lawyers to use reasonable care to prevent “others whose services are utilized by the lawyer from improperly disclosing or using confidences or secrets of a client.” All attorneys should have a plan for storage and/or disposition of files. See Opinion #143. Whether that plan involves storage at the attorney’s office or the hiring of a business to scan files and store them in CD format, the attorney who generated the files remains responsible for them and for compliance with the ethical rules relating thereto.

The question that gave rise to this opinion, however, was asked by the attorney proposing to operate the electronic file storage business. That attorney’s ethical obligations would depend largely on the way the business is structured. The tasks generally involved in the storage of legal files are “law-related services,” defined in Rule 3.2(h)(2) as:

“services that might reasonably be performed in conjunction with and in substance are related to the provision of legal service, and that are not prohibited as unauthorized practice of law when provided by a nonlawyer.”

Hence, under Rule 3.2(h)(1), the attorney operating the file storage business would be subject to the Code of Professional Responsibility with respect to those services if the file storage business were not conducted in circumstances “distinct from the lawyer’s provision of legal services to clients” with appropriate measures assuring those contracting with the business that “the services of the separate entity are not legal services.”

The inquiring attorney indicated that he or she might review the files intended for storage. Culling records to determine which tangible documents may be destroyed and which must be kept requires legal judgment and would be a legal service sub-contracted by the original attorney for the original client. If the attorney operating the business performs these tasks, then the Code of Professional Responsibility will clearly govern the rendering of that service. Furthermore, general access to confidential client information by the attorney or by his or her staff implicates Rules 3.4(c) and 3.4(d) and hence would impact on the attorney’s acceptance of other employment. Since the culling of records is a legal service rather than a “law-related service,” the Code will govern whether or not the file storage business is distinct from the attorney’s regular legal practice.

In conclusion, there is no ethical bar to file retention in an electronic format or to subcontracting the tasks associated with file storage and disposition, provided those functions are performed in accordance with the principles noted above. The attorney who generates the file remains primarily responsible for storage and disposition. The Code of Professional Responsibility governs an attorney operating a file storage business if he or she performs any legal services in connection with the business or if the business is not operated as a separate and distinct entity from the attorney’s legal practice.


Footnote

[1] Of course, original documents may not be destroyed “if there is a reasonable possibility that they may be needed in the future.” Opinion #74 (10/1/86). This would include such executed documents as wills, contracts, and promissory notes, and other documents with intrinsic value in their original form.


Enduring Ethics Opinion