Inside Track: Ethical Dilemma Can I Donate Old Client Files of Historical Significance?:

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    Can I Donate Old Client Files of Historical Significance?

    A lawyer's obligation of client confidentiality has no end, according to a recent ethics opinion. Wisconsin's ethics rules – and those of other states – agree that a lawyer may not voluntarily give closed files of historical significance to a historical society, university, or any third party.
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    Nov. 15, 2017 – How long – and how far – does a lawyer’s obligation for client confidentiality reach? Well past death, according to some.

    Question

    Our firm has been around in one form or another for many years and has had the good fortune of representing many leaders in the community. In particular, we have certain files which were generated by a single family, dealing with a public undertaking of significant historical interest. The files range back as early as the mid- to late 1800s and run through the early to mid-1900s. The single family referenced above has indicated their consent, but both the clients as well as the attorneys who were involved in the legal work generating the files are long since deceased.

    Given the passage of time, and the historical import of the files, may the firm turn over these client files to a library or educational institution?

    Have an Ethical Dilemma?

    Ethical dilemmas affect every lawyer’s practice. This series of questions and answers appears each month in InsideTrack. The answers, offered by the State Bar’s ethics counsel org tpierce wisbar Timothy Pierce and org akaiser wisbar Aviva Kaiser, are intended to provide guidance only and are not legal authority. Each situation will depend on the facts and circumstances involved.

    As a State Bar member, you have access to informal guidance in resolving questions regarding Wisconsin’s Rules of Professional Conduct for Attorneys. To informally discuss an ethics issue, contact Pierce or Kaiser. They can be reached at (608) 229-2017 or (800) 254-9154, Monday through Friday, 9 a.m. to 4 p.m.

    Answer

    This is the situation that was considered in Maine Ethics Opinion 213 (2016) which – unsurprisingly – reached the conclusion that the files could not be donated unless the original client consented. The Maine opinion commented on the duration of the duty of confidentiality:

    The obligations imposed by Rule 1.6 extend indefinitely. They survive the death of the attorney, as well as the client, and may continue after the dissolution of a corporate client.

    The Maine opinion goes on to conclude that permission of the family of the deceased clients or even a personal representative would not be sufficient,1 at least under Maine’s rules:

    A waiver by the family, the Personal Representative of an estate (to the extent one still exists), or similar person appearing to stand in the shoes of a deceased client is not sufficient to constitute a waiver of the attorney’s obligations of confidentiality.2

    While the conclusion that the duty of confidentiality survives the death of the client, and indeed has no stopping point or public interest exception, it is interesting that this question has arisen frequently enough to generate several other ethics opinions, including:

    All of these opinions reach the conclusion, as would be the case under Wisconsin’s SCR 20:1.6, that a lawyer may not voluntarily give closed files of historical significance to a historical society, university, or any third party.

    In Case You Missed It: Read Past Ethical Dilemmas

    Ethical Dilemmas appears monthly in InsideTrack. Check out these topics from recent issues:

    Administrative Suspensions: What Are Your Duties to Clients and Court? Oct. 18, 2017
    Apart from providing a lesson to read without delay any letter from the Board of Bar Examiners (BBE) and to keep up with your CLE requirements, this ethical dilemma addresses what you should do while waiting to be reinstated while on administrative suspension. In other words, does SCR 22.26 apply to administrative suspensions?

    Settlement Agreements: Should Lawyers Notify Clients of Errors from Opposing Counsel? Sept. 20, 2017
    Should a lawyer gain a client’s permission to notify opposing counsel that a critical provision was left out of the draft settlement agreement?

    Endnotes

    1 Wisconsin evidentiary law, specifically Wis. Stat. section 905.03(3), like the law of Maine, allows a personal representative of a deceased client to “claim” the privilege, but Maine does not view waiver of the privilege as sufficient to waive confidentiality in all circumstances.

    2 See Professional Ethics Commission Advisory Opinion # 192, Deceased client: Confidential information requested by Personal Representative, June 20, 2007.




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