Wisconsin Lawyer: Is a Lawyer Responsible for Safeguarding Client Files?:

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August 05, 2008

Is a Lawyer Responsible for Safeguarding Client Files?

Files are the property of the client, and the lawyer holds them in trust on behalf of the client. As such, the lawyer has a responsibility to "appropriately safeguard" client files.

Tim Pierce

Is a Lawyer Responsible for Safeguarding Client Files?

by Timothy J. Pierce

Files are the property of the client, and the lawyer holds them in trust on behalf of the client¹ As such, the lawyer has a responsibility to "appropriately safeguard" client files² This obligation does not mean that lawyers have a responsibility to guarantee the safety of client files; instead, lawyers must take appropriate and reasonable steps to protect client files.

If, despite the lawyer's reasonable efforts to protect files, the files are destroyed by an event such as a flood that is beyond the lawyer's control, the lawyer should take the following steps:

Notify current clients in a reasonable time about the destruction of their file.
Assess whether the destruction of the current client's file or other circumstances prevent the lawyer from providing the current client with competent and diligent representation. If the lawyer concludes that he or she cannot provide competent representation under the circumstances, the lawyer should so advise the client and withdraw³
With respect to closed client files, try to notify the former clients of the destruction of their files as soon as time and circumstances permit⁴

Endnotes

1See Wis. Ethics Op. E-00-03 and SCR 20:1.15.

²See SCR 20:1.15(6).

³See SCR 20:1.16(a).

⁴See Wis. Ethics Op. E-98-01.

Timothy J. Pierce, U.W. 1992, is the State Bar ethics counsel. Members can contact him for informal guidance and help in resolving questions regarding Wisconsin's Rules of Professional Conduct for Attorneys, at (608) 250-6168 or (800) 444-9404, ext. 6168, Monday through Friday, 9 a.m. to 4 p.m.