April 10, 2006
Lawyers may, but are not required to, store files electronically unless: a statute or rule requires retention of an original document, the original document is the property of the client, or destruction of a paper document adversely affects the client’s interests. Files stored electronically must be readily reproducible and protected from inadvertent modification, degradation or destruction.
RPC: 4-1.5(f)(4), 4-1.6, 4-1.8(j), 4-7.7(h), 5-1.2(b)(3), 5-1.2(d)
Opinions: 63-3, 71-62, 81-8, 88-11 (Rec.), ABA Informal Ethics Opinion 1127 (1970), New York County Ethics Opinion 725 (1998), New York State Ethics Opinion 680 (1996), North Carolina Ethics Opinion RPC 234 (1996)
The Professional Ethics Committee has been directed by The Florida Bar Board of Governors to issue an opinion regarding electronic storage of law firm files. The bar has received many inquiries regarding electronic storage of law firm files in the wake of natural disasters, such as hurricanes. Some lawyers have asked whether they may store files exclusively electronically, without retaining a paper copy.
There are very few Rules Regulating The Florida Bar that address records retention. Rule 4-1.5(f)(4) requires that lawyers retain copies of executed contingent fee contracts and executed closing statements in contingent fee cases for 6 years after the execution of the closing statement in each contingent fee matter. Additionally, lawyers who are paid by insurance companies to represent insureds must retain a copy of the Statement of Insured Client’s Rights that the lawyer has certified was sent to the client for 6 years after the matter is closed. Rule 4-1.8(j), Rules of Professional Conduct. Copies of advertisements and records of the dissemination location and dates must be retained for 3 years after their last use. Rule 4-7.7(h), Rules of Professional Conduct. Finally, trust accounting records must be retained for 6 years following the conclusion of the matter to which the records relate. Rule 5-1.2(d), Rules Regulating The Florida Bar.
The Rules Regulating The Florida Bar, with limited exception, do not specify the method by which records must be retained. As an example of an exception, Rule 5-1.2(b)(3) requires that lawyers retain original cancelled trust account checks, unless the financial institution they are drawn on will provide only copies. [Note: Rule 5-1.2(b)(3) has since been amended to allow either original cancelled checks or copies as long as they are legible and include all endorsements and tracking information.]
The committee has indicated in prior opinions that “the attorney must place primary emphasis on the desires of the client.” Florida Ethics Opinion 81-8. The committee has further determined that lawyers should make diligent attempts to contact clients to determine their wishes regarding file retention before the lawyer destroys any closed files. Florida Ethics Opinions 63-3, 71-62, and 81-8. These opinions are silent as to the method of file retention.
Many opinions from other states address records retention issues and, more specifically, whether files may be stored electronically as opposed to paper copies. These opinions, too numerous to cite, raise issues specific to electronic document retention that the committee finds worthy of mention. The opinions generally conclude that, with appropriate safeguards, electronic document retention is permissible. See, e.g., ABA Informal Ethics Opinion 1127 (1970) (Lawyers may use company that stores attorney files on computer as long as the material is available only to the particular attorney to whom the files belong, the company has procedures to ensure confidentiality, and the lawyer admonishes the company that confidentiality of the files must be preserved); New York County Ethics Opinion 725 (1998) (Permissible for a lawyer to retain only electronic copies of a file if “the evidentiary value of such documents will not be unduly impaired by the method of storage”); New York State Ethics Opinion 680 (1996) (Client’s file may be stored electronically except documents that are required by the rules to be kept in original form, but lawyer should ensure that documents stored electronically cannot be inadvertently destroyed or altered, and that the records can be readily produced when necessary); and North Carolina Ethics Opinion RPC 234 (1996) (Closed client files may be stored electronically as long as the electronic documents can be converted to paper copies, except for “original documents with legal significance, such as wills, contracts, stock certificates”).
This committee concludes that the main consideration in file storage is that the appropriate documents be maintained, not necessarily the method by which they are stored. Therefore, a law firm may store files electronically unless: a statute or rule requires retention of an original document, the original document is the property of the client, or destruction of a paper document adversely affects the client’s interests.
The committee agrees with other jurisdictions that have noted practical considerations involved in electronic file storage. The committee cautions lawyers that electronic files must be readily reproducible and protected from inadvertent modification, degradation or destruction. The lawyer may charge reasonable copying charges for producing copies of documents for clients as noted in Florida Ethics Opinion 88-11 Reconsideration. Finally, lawyers must take reasonable precautions to ensure confidentiality of client information, particularly if the lawyer relies on third parties to convert and store paper documents to electronic records. Rule 4-1.6, Rules of Professional Conduct.
The committee encourages the use of technology, such as electronic file storage, to facilitate cost-effective and efficient records management. However, the committee is of the opinion that a lawyer is not required to store files electronically, although a lawyer may do so.