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by
State Bar Professional Ethics Committee
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E-00-3: Electronic Files;
Client's Demand for Electronically
Stored Documents
What Must Lawyers Consider When Clients Request Electronic Files?
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...
Professional Ethics Committee opinions may be found online at
www.wisbar.org/ethop/.
In addition, Professional Ethics Committee opinions are available
in Wisconsin Ethics Opinions, published by State Bar of Wisconsin
CLE Books. Wisconsin Ethics Opinions includes the complete text
of all formal, informal, and memorandum opinions issued by the
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information or to order Wisconsin Ethics Opinions, call (800)
728-7788 or visit WisBar at www.wisbar.org/cle/books/.
Opinions and advice of the Professional Ethics Committee,
its members, and assistants are issued pursuant to State Bar Bylaws,
Article IV, Section 5. Opinions and advice are limited to the
facts presented, are advisory only, and are not binding on the
courts, the Board of Attorneys Professional Responsibility, or
State Bar members. Attorneys with questions on professional ethics
issues may contact the Ethics Hotline at (800) 444-9404, ext.
6168; or (608) 250-6168 (all day Wednesday); and (608) 629-5721
on Monday, Tuesday, Thursday, and Friday mornings. Send written
requests for Professional Ethics Committee opinions to the Professional
Ethics Committee c/o Keith Kaap, State Bar of Wisconsin, P.O.
Box 7158, Madison, WI 53707-7158. Professional Ethics Committee
opinions may be found online at www.wisbar.org/ethop/.
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