New York State
Bar Association
Committee
on Professional Ethics
Opinion
1142 (1/5/2018)
Topic: Delivering client file to client, maintenance of client files in
electronic form
Digest: Where
a lawyer keeps client files received in electronic form in that form and a
former client requests a copy of the file in paper form, the lawyer must take
reasonable measures to deliver the electronic documents in a form in which the
client can access them, but the lawyer may charge the client the reasonable
fees and expenses incurred in printing out and delivering a paper copy.
Rules: 1.15.
FACTS
1. The inquirer has a litigation practice in which
most documents, such as discovery materials and transcripts, are received or
generated in electronic form. The
inquirer stores such documents in electronic form. In those instances in which the inquirer
receives documents in hard-copy form, such as documents received from clients,
he scans the documents and either returns the originals to the client or keeps
them separate from the electronic file.
2. Generally, when a former client requests a copy
of his or her file, the firm provides a link to a secure, password-protected
cloud storage facility containing the client’s file. One former client, who retained the firm to
represent him in a criminal matter and who is now incarcerated, has requested
that the firm send a printed copy of his electronic file to the former client’s
spouse. The inquirer states that it
would be expensive to print out the electronic documents and send the printed
copy to the client. The firm has no
hard-copy documents for this client.
QUESTION
3. To what extent must a lawyer provide a former
client with the client file in the form in which the client requests it?
4. Where a law firm maintains its client files in
electronic form, can the lawyer charge the former client for the costs of
printing and mailing a copy of the client file to the client?
OPINION
5. The principles that largely govern the answers
to these questions have been set forth in a number of court and ethics
opinions. First, except where original
documents have particular evidentiary or similar value, a lawyer is not
required to maintain the client file in any particular form. N.Y. State 940 ¶ 12 (2012) (except for “documents such as wills,
deeds, contracts, and promissory notes” or other documents whose legal effect
or evidentiary value may be impaired by destroying originals, “the Rules permit
electronic copies to be kept in lieu of paper originals”); N.Y. County 725
(1998) (“[I]n some circumstances it may be appropriate for an attorney to
record the contents of a client’s file electronically or on microfilm instead
of retaining the physical file, so long as the evidentiary value of such
documents will not be unduly impaired by the method of storage.”). See also N.Y. State 1020 ¶ 8 (2014) (a lawyer may
use cloud-based data storage and sharing tools as long as the lawyer “takes
reasonable steps to ensure that confidential information is not breached”).
6/ Second, it is well-established that, with some
exceptions not relevant here, a former client is entitled to his or her client
file. Sage Realty Corp. v. Proskauer
Rose Goetz & Mendelsohn, 91 N.Y.2d 30, 37 (1997) (holding that a former
client was presumptively entitled to both “end-product” documents and “work
product materials, for the creation of which they paid during the course of the
firm’s representation”); N.Y. State 766 (2003) (overturning prior opinion in
light of Sage Realty and concluding that “a former client is entitled to
any document related to the representation unless substantial grounds exist to
refuse access”). The lawyer’s ethical
obligation to deliver to the client the client file upon request derives from
Rule 1.15(c)(4) of the New York Rules of Professional Conduct (the “Rules”),
which requires a lawyer to “promptly . . . deliver to the client . . . as
requested by the client . . . the funds, securities or other properties in the
possession of the lawyer that the client . . . is entitled to receive.” See N.Y. State 766.
7. Third, it is likewise well-established that a
lawyer can generally charge a former client the reasonable fees and expenses of
assembling and delivering to the former client those documents that the client
is entitled to receive. Sage Realty,
91 N.Y.2d at 38 (“as a general proposition, unless a law firm has already been
paid for assemblage and delivery of documents to the client, performing that
function is properly chargeable to the client under customary fee schedules of
the firm, or pursuant to the terms of any governing retainer agreement”). Where a lawyer gives a client the documents
to which the client is entitled, the lawyer is generally entitled to retain a
copy, but because the copy is for the lawyer’s own protection and not to
advance the client’s interests, the lawyer must bear the costs of making that
copy. N.Y. State 780 (2004) (finding that a lawyer
generally has a “right to retain copies of the file in order to collect a fee
or to defend against an accusation of wrongful conduct,” but that the lawyer
must pay for that copy).
8. Thus, it is clear that the inquirer must provide
the client with a copy of his file, but we have not previously considered whether
the lawyer must print out electronic documents if the client so requests. We conclude that where the client is unable
to read electronic documents, the lawyer should make reasonable efforts to
transmit the file in a form in which the client can access the documents. This conclusion is based on the premise that
the property to which the client is entitled is not merely the physical medium
on which the documents reside but the information contained thereon. Where a client is incarcerated, the client
may not be permitted to receive a computer disk or drive containing the client
file, or may not have the equipment to read the documents so they are usable in
any further proceedings.
9. However, the lawyer is not obligated to pay the
costs of printing out the documents.
Rather, as the Court of Appeals concluded in Sage Realty, the
costs of “assemblage and delivery of documents to the client” are properly
chargeable to the client. 91 N.Y.2d at
38. The costs of preparing electronic
documents for delivery to the client are analogous to the costs of assemblage
of paper documents that were at issue in that case. See N.Y. City 2008-1 (“Although the
Court of Appeals’ Sage Realty decision principally related to paper
documents, we do not see any principled reason why a lawyer’s fees may not
reflect the reasonable costs of retrieving electronic documents from their
storage media and reviewing those documents to determine the client’s right of
access.”). As in Sage Realty,
however, a different answer on who pays for the printing might obtain where
“the law firm has already been paid for” printing a copy of documents, as when
a lawyer receives a transcript in hard copy form at a per-page fee that was
charged to the client. Here, the
inquirer states that there are no such hard copy documents for this client, so
they are not the subject of his inquiry.
Similarly, because the inquirer was retained by a paying client, we have
no occasion to consider whether a different result might obtain where the
lawyer was appointed by a court to represent an indigent client.
CONCLUSION
10. Where a lawyer keeps client files received in
electronic form in that form and a former client requests a copy of the file in
paper form, the lawyer must take reasonable measures to deliver the electronic
documents in a form in which the client can access them. The lawyer may charge the client the
reasonable fees and expenses incurred in printing out and delivering a paper
copy.
(34-17)
