Wisconsin 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. 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
Wisconsin Lawyer