Risk Update

Professional Rules — Client File Retention and Destruction Rules and Guidelines in California, ABA on Disclosing Clients Over Listserv Email Lists

ABA Issues Opinion on Disclosing to Clients When Using Listservs” —

  • “Lawyers should not reveal any information relating to a client’s representation to a wide group of lawyers in a computer listserv, or group email list, without informed consent, the American Bar Association has advised in a formal opinion Wednesday.”
  • “The new guidance for the use of email lists by lawyers addresses when it’s permissible to ask large groups of other lawyers questions that could identify a client and their legal issues.”
  • “‘Participation in most lawyer listserv discussion groups is significantly different from seeking out an individual lawyer or personally selected group of lawyers practicing in other firms for a consultation about a matter,’ according to the opinion issued Wednesday by the ABA Standing Committee on Ethics and Professional Responsibility.”
  • “Without informed client consent, the opinion found, ‘lawyer participating in listserv groups should not disclose any information relating to the representation that may be reasonably connected to an identifiable client.'”
  • “The opinion added that lawyers may participate in listserv discussions related to legal news or changes in the law without getting a client’s consent, if the lawyer doesn’t disclose information about a client representation.”
  • See complete text of Formal Opinion 511.

In California, noted in the May meeting of the Committee on Professional Responsibility and Conduct: “Discussion of Draft Opinion 19-0004 [re Client File Release and Retention Duties], and Possible Approval for Circulation for Public Comment” —

  • “What are the ethical obligations of lawyers with respect to retention and destruction of client files, materials, and property in closed civil and criminal matters?”
  • “California Rules of Professional Conduct do not specify a fixed retention period for closed client files. A lawyer’s file retention duties generally turn on the lawyer’s obligations as the bailee of the client’s papers and property and the lawyer’s duty to avoid reasonably foreseeable prejudice to a former client.”
  • “If not returned to the client, original documents, property furnished to the lawyer by the client, and items of intrinsic value must be retained by the lawyer and cannot be discarded or destroyed without the client’s consent.”
  • “In civil matters, absent an agreement to the contrary, other client materials and property may only be destroyed after the lawyer uses reasonable means to notify the client of their intended destruction and gives the client a reasonable time to respond. If a client cannot be located or fails to respond to reasonable notice of intended destruction of the file, the lawyer may destroy items whose retention is not required by law and is not necessary to avoid reasonably foreseeable prejudice to the client. Items that the lawyer believes are reasonably necessary to the representation may be preserved in electronic form only, unless the lawyer believes the loss of physical copies will prejudice the rights of the client.”
  • “Client file retention and disposal can be challenging for California lawyers due in no small part to the absence of a clear rule on the topic. The California Rules of Professional Conduct and the State Bar Act do not specify how long a lawyer must retain a client’s file in a closed matter. They also do not provide when and how a lawyer may destroy the contents of closed client files.”
  • “Ethics opinions generally agree that absent an agreement or other legal proscription to the contrary, certain file contents in closed civil matters may be destroyed after the lawyer makes reasonable efforts to notify the client of their intended destruction, but they disagree on whether there should be a fixed, minimum retention period applicable to all file contents.”
  • “The California Rules of Professional Conduct and the State Bar Act are also silent on the destruction of closed client files. Regardless, before disposing of any item in a closed client file, a lawyer must take certain precautions to prevent any reasonably foreseeable prejudice to the former client.”
  • “Before disposing of any item in a closed civil file, absent an agreement to the contrary, a lawyer must make reasonable efforts to locate and notify the former client of the existence of the file, of the client’s right to examine and retrieve the file, and of the intended destruction.”
  • “If the lawyer is without personal knowledge of the contents of the file, the lawyer should consider whether to examine the file to determine whether there are any items that must be retained (as described above) or might result in reasonably foreseeable prejudice to the client if destroyed.”
  • See the complete draft document for a number of submitted comments.