Wisconsin Lawyer
Vol. 82, No. 8, August 2009

Question

I read a recent article about destroying client files. What steps must I take to get rid of these files?

Answer

You may be referring to the March 2009 article entitled “Closed Client Files: Hold ’em or Fold ’em.” That article discusses the guidelines to be followed when considering how to handle client files. Certain precautions must be taken when getting rid of former clients’ files. The obligation of client confidentiality under SCR 20:1.6 continues even though you are no longer representing the client or the client is no longer in contact with you. Your obligation to ensure that attorney-client information is kept confidential extends well beyond the completion of the representation and will likely run forever, even after the client’s death.

As a result of this duty to ensure confidentiality of attorney-client information, you must take specific steps to ensure that the client information in the files is completely destroyed. Placing the files in the trash at your home or office is not sufficient to protect the client information contained in those papers.

Dean R. Dietrich, Marquette 1977, of Ruder Ware, Wausau, is chair of the State Bar Professional Ethics Committee.

A recent discipline case by the Ohio Supreme Court exemplifies the precautions that an attorney must take. An attorney was issued a public reprimand based on findings that he failed to properly dispose of confidential client files and other materials. This attorney, when closing his office, left boxes of client records along with other materials and furniture in a garage behind the office that he leased. After leaving the office area, the attorney placed several client files next to a Dumpster^® trash container instead of taking them with him when he moved to another location. The Ohio Supreme Court concluded that this attorney committed professional misconduct by violating Professional Conduct Rules 1.6(a) and 1.9(c)(2) when he failed to properly dispose of the client files and materials and instead left them unsupervised by a trash container.

Conduct of this nature also would violate the Wisconsin Supreme Court Rules. SCR 20:1.6(a) provides in relevant part as follows:

“(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in pars. (b) and (c).”

SCR 20:1.9(c)(2) provides in relevant part as follows:

“(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:

. . .

“(2) reveal information relating to the representation except as these rules would permit or require with respect to a client.”

Both of these rules require an attorney to maintain confidentiality of any client information. This would include client files and written materials maintained on behalf of or for the benefit of a client. Lawyers must be very careful when destroying client records to ensure that they are properly destroyed and no access is granted to anyone else. The lawyer should enter into a confidentiality agreement with any shredding contractor or company that is destroying the documents. The lawyer may not be required to personally observe the destruction of all the records but should be aware of the procedures used by the company to destroy the records so that the lawyer has exercised reasonable supervision of the process. Simply placing old files and client paperwork in the trash or packaging it for garbage pickup would not satisfy the duty to protect the confidentiality of client information.

Lawyers should be very cautious when first deciding whether to destroy client files after representation has been completed. The March 2009 article gives some guidelines for lawyers to consider when establishing a policy for destroying client files. If a lawyer decides that client files can be destroyed, the lawyer must take further precautions to ensure that the destruction occurs in a safe and confidential manner so that papers or other information are not left available in any fashion for someone to see.

For reader input on this issue, please see the “What Keeps You Awake at Night?” column elsewhere in this issue.   

Wisconsin Lawyer