|Oregon State Bar Bulletin APRIL 2009|
By Helen Hierschbiel
Sustainability. Reducing carbon footprints. These are not meaningless buzzwords. Instead, the prevalence of these concepts in everyday conversation reflects a growing interest in environmental responsibility and a recognition that green business practices make good business sense. The Oregon State Bar Board of Governors recently jumped on the green bandwagon by creating the Task Force on Sustainability, which will consider and develop a proposal for ways the bar can promote sustainable practices within the bar and the legal profession. One way that is gaining popularity among lawyers is the practice of "going paperless." This means either converting documents in client files from paper to electronic form, or in some cases, never creating a paper document at all. Managing records electronically not only reduces the use of paper, but it requires less physical storage space and can make for easier organization of and access to the files. Thus, it can be a key element in developing a more sustainable law practice.
As lawyers strive for paperless offices, they need to be aware of important ethical considerations.
The Client File
Oregon RPC 1.15-1(d) requires lawyers to promptly deliver to the client any property that the client is entitled to receive. Similarly, absent a viable attorney lien, lawyers must surrender all papers and property to which the client is entitled upon termination of representation. RPC 1.16(d). While the rules do not address what constitutes client property, OSB Formal Op No 2005-125 has interpreted these provisions and case law to impose an obligation on lawyers to deliver a former client’s entire file, including:
Papers and property that the client provided to the lawyer; litigation materials, including pleadings, memoranda, and discovery materials; all correspondence; all items that the lawyer has obtained from others, including expert opinions, medical or business records, and witness statements.
E-mail communication is not specifically included in this list. However, given the increased reliance on electronic communications in the practice of law, it seems reasonable to assume that e-mails would necessarily be considered "correspondence" and therefore part of the client file. Oregon RPC 1.0(q) defines "writing" as "a tangible or electronic record of a communication or representation, including handwriting, typewriting, printing, photostatting, photography, audio or videorecording and e-mail." Citing the ABA Model Rule 1.0 (on which the Oregon rule was based), the New Hampshire Bar Association Ethics Committee concluded in Opinion 2005-06/3 that electronic forms of communications, documents and other records pertaining to the client are all part of the client file:
[T]he mere existence of a paper file does not necessarily allow a firm to automatically exclude electronic communications and other computer-based writings from the client’s file.
By comparison, it seems apparent that Oregon Formal Op No 2005-125 would urge lawyers to provide clients with those documents that were created and exist only in an electronic format. The opinion does not address, however, either the form in which the lawyer may maintain the client documents or the form in which the lawyer must provide a copy to the client. In fact, nothing in the rules of professional conduct speaks specifically to the propriety of converting and maintaining client files in an electronic format.
Before deciding whether to convert client files into an electronic format, lawyers must determine how to ensure that the electronic documents cannot be inadvertently modified or destroyed. If an electronic file can be easily altered or irretrievably lost, then chances are it has not been appropriately safeguarded as required by Oregon RPC 1.15-1. In addition, care must be taken to preserve client confidentiality.1
Even when electronic conversion poses little risk to the confidentiality or integrity of the documents, lawyers may not be free to discard all of the originals. The State Bar of Arizona Committee on the Rules of Professional Conduct advises lawyers to obtain client consent before destroying originals that belonged to or were obtained from the client and to retain the original hard copy documents if their absence could prejudice the interests of the client. Arizona Ethics Op 07-02 (2007). For example, the opinion advises that legally operative documents should be maintained in their original form, as should photocopies when a digital image of the photocopy would degrade the value. Oregon lawyers are encouraged to take the same precautions.
Once a client file is digitized, the question becomes whether and how to provide access to the client. Assuming that the client has not already received a complete copy of the file, Oregon precedent indicates that lawyers would be obligated to turn over a copy in short order. Most state ethics opinions seem to agree that for those clients who would prefer an electronic copy, lawyers should provide the electronic version. But what about clients who need paper copies? Stating that clients are entitled to "meaningful access" to their files, Arizona Ethics Opinion 07-02 propounds:
A lawyer who has chosen to store his or her client files digitally cannot simply hand a disk or other storage medium to a client without confirming that the client is able to read the digitized images. If the client does not have either the technological knowledge or access to a computer on which to display the electronic images, or if the client has hired substitute counsel who is in the same position as the client, the original lawyer may need to provide paper copies of the documents. If the lawyer has opted to store the file solely as digital images for his or her own convenience, the lawyer will need to bear the cost of providing those paper copies, absent other agreed-upon arrangements.
This conclusion makes sense for documents that the lawyer converted from paper to an electronic format. Some documents, however, are created in an electronic format and are not reduced to paper. E-mails are one example.2 Should lawyers be required to provide clients paper copies of e-mails, or is an electronic version sufficient?
According to the North Carolina State Bar Formal Ethics Op 5 (2002), providing a copy of e-mail correspondence either on a computer disk or electronically is acceptable in light of the widespread availability of computers. Similarly, the State Bar of California’s Standing Committee on Professional Responsibility and Conduct, Ethics Opinion 2007-174, concluded that a lawyer’s duty to release documents in electronic form does not mean that the lawyer must provide the client documents "in any application other than the application in which the attorney possesses them. That is because the attorney’s obligation is to release items, not to create them or to change the application." While not binding in Oregon, these opinions provide some guidance for Oregon lawyers in deciding how and when to provide clients access to electronic files and documents.
Converting and maintaining client files in an electronic format can be an important part of a sustainable law practice. From an ethics standpoint, the key issue for lawyers is to determine whether electronic storage compromises the duty to protect client interests and property. In addition, going paperless does not change the lawyer’s duty to provide clients with complete copies of their files; it may only change the format in which the file is provided. Disputes with clients over file access can be avoided by consulting with clients before converting or destroying their files or by simply returning the file to the client after conversion. However, the best way to avoid arguments with clients over their files is to establish a document conversion, retention and destruction policy that is conveyed to clients at the outset of the representation in the retainer agreement or engagement letter.
1. Exactly what steps lawyers must take to protect the confidentiality of electronic files is beyond the scope of this article. For an overview of the issues involved, see Comerford, "Competent Computing: A Lawyer’s Ethical Duty to Safeguard the Confidentiality and Integrity of Client Information Stored on Computers and Computer Networks," 19 Geo. J. Legal Ethics 629 (2006).
2. For lawyers who may be struggling with how to electronically manage client e-mails, the Professional Liability Fund’s practice management advisers may be able to help. See Michaelis, "Four Simple Ways to Save Client E-mail," In Brief, November 2006.
ABOUT THE AUTHOR
Helen Hierschbiel is deputy general counsel in the OSB Client Assistance Office. She can be reached at (503) 620-0222, or toll-free in Oregon at (800) 452-8260, ext. 361, or by e-mail at firstname.lastname@example.org..
© 2009 Helen Hierschbiel