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    Ethics: Maintaining Electronic Client Files

    Lawyers should take precautions to maintain client confidentiality and file accessibility when storing client files in electronic format.

    Timothy J. Pierce

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    Wisconsin LawyerWisconsin Lawyer
    Vol. 79, No. 9, September 2006

    Maintaining Electronic Client Files

    Lawyers should take precautions to maintain client confidentiality and file accessibility when storing client files in electronic format.

    by Timothy J. Pierce

    Many lawyers and law firms are increasingly using electronically stored documents, including scanning paper documents into digital format. Some firms store open and closed client files in electronic format. No current Wisconsin ethics opinion offers specific guidance on this practice.1 However, the lawyer ethics committees of many other states have addressed this issue and have found that the practice is ethically permissible, provided that certain precautions are observed. This article discusses just what precautions should be observed when maintaining client files in electronic format.

    There is nothing in Wisconsin's Rules of Professional Conduct for Attorneys that prohibits lawyers from maintaining client files in electronic format.2 The rules clearly require lawyers to protect and preserve open and closed client files, but the rules do not prescribe the form in which client files must be preserved. Thus, for example, the rules permit a lawyer to keep a client's file, to the extent possible, in an electronic format from the start of a representation by scanning paper documents and retaining them in the firm's computer system, provided certain precautions are followed. Similarly, and again provided that precautions are followed, the Rules permit a lawyer to convert closed client files to electronic format for ease of storage.

    Timothy J. PierceTimothy J. Pierce, U.W. 1992, is the State Bar ethics counsel and liaison to the Professional Ethics Committee.

    Guidelines for Electronic Files

    While electronic files are permissible under the rules, it is important to bear in mind the following principle: the file is the property of the client, and the lawyer is obligated to safeguard and provide the file to the client on request.3 Keeping in mind this principle, the following are suggested guidelines for lawyers who wish to keep client files in electronic format.

    1) A lawyer must protect important original documents from destruction or loss. Lawyers must retain any original documents that have an economic, legal, evidentiary, personal, or other value in their original form.4 Retaining an electronic or other nonoriginal copy of such documents is not sufficient. It is not possible to compile a complete list of such documents, but some examples would be wills, documents of title, birth records, some contracts, and personal photographs. Special care must be taken with original documents for which there is only one original. In some instances, handwritten documents, such as hand writing exemplars, may have evidentiary significance that would be lost if the original were not preserved. Lawyers who come into possession of such documents must retain them unless the documents are filed as required by law with a public agency, transferred with the owner's consent, or returned to the proper owner.

    2) A lawyer who electronically maintains nonoriginal documents or original documents having no value as originals may destroy those documents after making a stored electronic copy. Once the lawyer has determined that a document need not be preserved in its original format, the lawyer may convert the document to electronic format and destroy the paper copy. In many circumstances, an entire client file (pleadings, correspondence, the lawyer's notes, emails, and so on) may exist solely in electronic form. Prior client consent to maintaining client files in electronic format is not required, but the rules impose obligations on lawyers with respect to such files.

    3) Lawyers who maintain electronic client files must be able to provide the file to the client in a format the client can use.5 Many clients today may desire, or even demand, to receive documents on disk or as email attachments, but some clients may not have a computer or may prefer hard copies. Thus a lawyer must have the necessary software and hardware to retrieve both open and closed files at the client's request. A lawyer who is updating computer systems must be certain that such an update will still allow the lawyer to access and produce closed electronically stored files. For information on a lawyer's obligation to retain closed client files, see Wisconsin Ethics Opinion E-98-1.

    4) A lawyer must take reasonable steps to protect the confidentiality of electronically stored client files. Lawyers have an obligation to act competently to protect the confidentiality of information relating to the representation of their clients, including protecting both open and closed client files.6 With respect to electronically stored client files, a lawyer must take reasonable steps to ensure that third parties will not gain access to such documents. This raises the question as to whether client files may be stored on a computer system that is linked to the Internet or even be stored on servers controlled by a third party.

    While not directly on point, ABA Formal Opinion 99-413 is instructive. In that opinion, the ABA Ethics Committee opined that it is ethical for a lawyer to communicate with a client and transmit client information via unencrypted email because there is a reasonable expectation of privacy in email, just as there is with respect to the U.S. mail and land-line phones. Notably, this opinion holds that this reasonable expectation of privacy applies even though email messages may pass through, and be accessed by, third parties (for example, online service providers such as AOL).

    In Ethics Opinion 701 (2006), the New Jersey Advisory Committee on Professional Ethics opined that it is ethical for a lawyer to store client data on servers that are not under the exclusive control of the lawyer, such as a server provided by an Internet service provider (ISP), if the lawyer uses reasonable care to ensure the confidentiality of client information. "Reasonable care" requires that the lawyer make sure that any third party that may have access to client information is aware of the lawyer's obligation to preserve confidentiality and that the third party is itself obligated, by contract, professional standards, law, or otherwise, to maintain the confidentiality of the client information. The lawyer also must use reasonable care to ensure that available technology is used appropriately to protect the confidentiality of client data.

    In Formal Opinion No. 33 (2006), the State Bar of Nevada's Standing Committee on Ethics and Professional Responsibility likewise opined that a lawyer may store client information on a server or device that is not exclusively in the lawyer's control, provided that the lawyer:

    • exercises reasonable care in selecting the third party contractor, such that the contractor can be reasonably relied on to keep the information confidential;
    • has a reasonable expectation that the information will be kept confidential; and
    • instructs and requires the third party contractor to keep the information confidential and inaccessible.

    The New Jersey and Nevada ethics opinions7 recognize the reality that a lawyer cannot, and is not required to, absolutely guarantee the confidentiality of client information but must act competently to preserve that confidentiality. Indeed, competent representation of and adequate communication with clients requires entrusting client information to third parties, such as messengers and the U.S. Postal Service. Thus a lawyer may store electronic client files on a computer system accessible via the Internet or a server owned by a third party, provided that the lawyer uses reasonable care to ensure confidentiality.

    Conclusion

    A lawyer may store client files, both open and closed, in electronic format, provided that the lawyer:

    • retains, when necessary, important documents and other client property in their original format;
    • maintains the necessary hardware and software to provide the file to the client in a format the client can use; and
    • uses reasonable care to ensure the confidentiality of electronically stored client files.
    • In situations in which a third party, such as an ISP, may be able to access the files, the lawyer should ensure that:
    • the third party understands the lawyer's obligation to keep the information confidential;
    • the third party itself is obligated to keep the information confidential;8 and
    • reasonable measures are employed to preserve the confidentiality of the files.9

    Endnotes

    1In Ethics Opinion E-00-03, the State Bar of Wisconsin Ethics Committee implicitly recognized that lawyers may maintain electronic client files.

    2This applies to both the current Rules of Professional Conduct and the proposed new Rules, which will go into effect sometime in 2007. For more information on the proposed new Rules, see Overview: Court's Proposed Changes to Attorney Conduct Rules, Dean Dietrich and Tim Pierce, 79 Wis. Law. 28 (July 2006).

    3See Wis. Ethics Op. E-00-03.

    4See SCR 20:1.1(competence), 20:1.15 (obligation to safeguard client property), 20:1.16 (obligation to protect client interest on terminating the representation).

    5See SCR 20:1.16(d).

    6See SCR 20:1.1, 20:1.6.

    7See also Ariz. Ethics Op. 05-04 (2005).

    8For example, the lawyer may wish to insert a clause in the service contract requiring the service provider to maintain the confidentiality of client information, or ensure that the service provider has and enforces such a policy on its own.

    9This does not mean that the lawyer must become a computer expert to review the security measures. Rather, the lawyer should make reasonable inquiry into security measures and be satisfied with the answers.




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