Return of Records to Client upon Termination of Representation [2013 Formal Ethics Opinion 15]

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View formal ethics opinion in full here

The State Bar Council formally adopted 2013 FEO 15 at its January 2014 conference.  The opinion examines an attorney’s responsibility relative to electronic records following termination of representation.  In today’s digital age, where e-discovery has evolved into its own legal sub-industry, more and more attorneys rely on a significant volume of electronic records.

Returning Electronic Records Following Termination of Representation

Following termination of representation, Rule 1.16(d) requires an attorney to “take steps to the extent reasonably practicable to protect a client’s interests, such as … surrendering papers and property to which the client is entitled ….”  Electronic records that “would be helpful to successor counsel” are considered part of the client’s file.  Various types of records—most notably those constituting incomplete work product—are not considered part of the client’s file.

For those records that are considered part of the client’s file, attorneys have “a duty to provide a copy of the record to the client upon the termination of the representation.”  By contrast, there is no duty to provide copies of electronic records that the attorney in her legal judgment determines are not part of the client’s file.

Upon the client’s request for such records, the attorney must weigh two competing interests in determining how to produce the records: (1) the attorney’s interest in producing the client’s file efficiently; and (2) the client’s interest in receiving the file in a format that will be useful and accessible to the client and/or successor counsel.  The general rule is that the attorney bears the costs of producing the records.  The opinion outlines three scenarios, however, in which the attorney may bill the client for the cost of production.

Storage and Organization of Electronic Records

The system by which an attorney organizes electronic records must be “designed to safeguard client information.”  The records must also be organized in a manner that is readily searchable, allowing attorneys to compile the records as necessary during representation or when responding to a client’s request for such records.  The opinion also notes the importance of a regular procedure for efficiently determining whether electronic records (e.g., an email) should be retained as part of the client’s file.

If you wish to respond or otherwise offer a guest contribution discussing this formal ethics opinion, please contact the ethics editor at cu***********@em***.edu.