E-00-3: Electronic Files; Client's Demand for Electronically Stored
Documents
What Must Lawyers Consider When Clients Request Electronic
Files?
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by State Bar Professional Ethics
Committee
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Professional Ethics
Opinion E-00-3
considers whether lawyers must provide clients with disk copies of the
clients' documents, including what files belong to clients, who owns the
computer files, and who pays for retrieving the documents.
MUST A LAWYER ON DEMAND provide a client with an electronically
stored copy (disk copy) of all the client's documents the lawyer has
maintained in an electronic format?
Opinion
1) Which documents in a client file belong to the
client? It has generally been recognized that each client file
is the client's property even though that file is maintained by the
lawyer in the lawyer's office. See Colorado Ethics
Opinion 104 (1999); Michigan
Ethics Opinion RI-203 (1994); Kansas Ethics Opinion 92-05 (1992); Alaska Ethics Opinion
95-6 (1995); In re: Admonition Issued in Panel File No. 94-24, 533
N.W.2d 853 (Minn. S. Ct. 1995). However, certain papers maintained
by the lawyer in client files may be the work product of the lawyer and
need not be produced to the client on demand. Where this line of
demarcation is drawn has never been precisely defined. The Professional
Ethics Committee finds the following definition of which papers the
lawyer is not required to produce at the client's demand to be sound and
instructive.
There are two primary areas in which the lawyer properly retains
papers and documents that do not constitute papers and property to which
the client is entitled. One includes documents used by the attorney to
prepare initial documents for the client, in which a third party, for
example, another client, has a right to nondisclosure. A lawyer has the
right to withhold pleadings or other documents related to the lawyer's
representation of other clients that the lawyer used as a model on which
to draft documents for the current client. However, the product drafted
by the lawyer may not be withheld.
A second area involves those documents that would be considered
personal attorney work product and not papers and property to which the
client is entitled. Certain materials may be withheld such as, for
example, internal memoranda concerning the client file, conflict checks,
personnel assignments, and lawyers' notes reflecting personal
impressions and comments relating to the business of representing the
client. This information is personal attorney work product that is not
needed to protect the client's interests, and does not constitute papers
or property to which the client is entitled.
Detailed definition of this second category is difficult. The
distinction in this area is factually specific to each situation and
must be determined by the lawyer, realizing that the lawyer has the duty
to take those steps reasonably practicable to protect the client's
interests by surrendering the necessary information. Generally, such
duty favors production. See Colorado Ethics
Opinion 104 (1999).
2) Who owns the computer files on which client materials are
stored or that are used to generate client documents? The
committee opines that hardware and software that a law firm uses to
store documents is the property of the law firm, even though they may be
used to store documents belonging to clients. It may violate copyright
or other contractual restrictions to copy software to provide
information to a third person. In the committee's opinion, a client does
not have a right to receive a copy of software programs that a law firm
uses to store and/or permit manipulation of documents in a client's
file. The client's right to recover its file on demand applies only to
those documents that are the client's property.
3) Does a law firm have the duty to provide, at the client's
request, an electronic disk copy of client's materials that have been
maintained in an electronic form by the law firm? In Wisconsin
Ethics Opinion 82-7,
this committee opined that a lawyer is not required to provide, at his
or her own expense, a duplicate of those materials in a client file that
the lawyer previously sent to the client. The committee now reaffirms
that position.
However, even if a lawyer may charge for the actual cost of making a
second copy of materials previously sent to the client, the materials
must be provided at the client's request to comply with the lawyer's
obligation to, upon the termination of a representation, take steps to
the extent reasonably practicable to protect a client's interest, such
as surrendering papers and property to which the client is entitled. See
SCR
20:1.16(d).
The committee opines that when a client requests materials from his
or her file that a lawyer has not previously sent to the client, the
lawyer must provide those materials to the client at the lawyer's
expense unless the lawyer and client had agreed to a different
arrangement. In effect, if a lawyer chooses to retain a copy of the
client's documents, which a lawyer may do, the lawyer must bear the cost
of making the copy of the client's documents.
Today, clients may request documents in an electronic form (either in
addition to or in lieu of hard copies) for reasons of convenience and
cost saving. Nothing requires the lawyer to provide two sets of copies
of the client's documents (hard copies and electronic copies). However,
when the client requests documents be provided on a computer disk which
the lawyer has maintained electronically, the lawyer should provide
those documents in the requested format, so long as it is reasonably
practicable to do so. Depending on the manner in which the lawyer
maintains electronic documents, much of what a client would request in
this format should be easily retrievable by the lawyer and be no more
costly to duplicate than hard copies of documents. However, depending on
such factors as how electronic files are maintained, the scope of the
client's request, the age of files, and other factors relating to the
storage of electronic documents, the identification and segregation of
those requested documents or files may involve more significant staff
and/or professional time in identifying documents for production.
Professional and staff time also may be needed to resolve issues such as
the effect of production on the confidentiality rights of other clients
and issues of attorney work product.
4) To what extent can a lawyer charge a client for costs of
producing electronically stored documents? A lawyer may charge
a client for the cost of producing electronic documents that previously
were provided to the client in either hard copy or electronic formats.
Normally, copying an identifiable set of electronic documents onto a
computer disk can be done at little or no expense.
A more difficult situation arises when a client requests documents
whose production may require staff or professional time to search
databases in order to locate the documents and to make judgments about
whether the documents fall within the scope of the request, whether
production affects confidentiality rights of other clients, or whether
the documents are a lawyer's work product that may not require
production. The committee opines that a lawyer may charge a client for
staff and professional time necessarily incurred to search databases to
identify files that contain documents that may fall within the client's
request. Such costs are incurred in providing a service for the benefit
of that particular client. Costs must be reasonable and must not impair
the client's practical access to its file. Before undertaking such a
search, a lawyer should consult with the client and inform the client,
to the extent possible, of the costs likely to be incurred in such a
search.
However, when the time expended in searching a client's electronic
files is directed to determining whether the release of documents to
that client may adversely affect the lawyer's interests or that of his
or her other clients, the costs associated with that endeavor cannot be
charged to the client seeking the documents from its file. For example,
if staff or other costs are incurred in separating documents to protect
other clients' confidences or in identifying which documents may not be
subject to production as the lawyer's work product, those costs are the
responsibility of the lawyer and may not be charged to the client
requesting the file.
5) Focus on prevention. Requests by clients for
electronically maintained materials will be more frequent as the use of
technology expands. Lawyers should anticipate such requests and consider
ease of access and retrieval of client files when configuring their
electronic filing systems. Lawyers also should consider including in
their retainer agreements an explanation (consistent with the Rules of
Professional Conduct) that clients may access their files, and the costs
may be incurred by clients for the retrieval of such files.
To Learn More...
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