By Roy Simon [Originally published in NYPRR January 1999]
In October 1998, the NYCLA Committee on Professional Ethics issued two ethics opinions. Here are summaries of them:
Discarding Old Files — NYCLA Op. 725 (10/6/1998)
“When and how may a lawyer discard closed client files?” This simple question came from a retired attorney. He no longer represents private clients but may lose access to the place where he currently stores client files. The NYCLA Committee, in the first ethics opinion to cite an article from NYPRR, carefully balanced two interests: avoiding unreasonable burdens and expenses from storing closed files, while preserving important documents in case they are needed after a client’s file has been closed. The Committee addressed these competing interests by dividing closed files into four categories and components:
1. “Documents that belong to the lawyer.” These documents raise the fewest ethical problems. “Unless the lawyer has an independent legal duty to retain such documents, he is free to discard them absent ‘extraordinary circumstances manifesting a client’s clear and present need for such documents.” However, whether a document in a client file “belongs” to the lawyer is a question of law that the Committee did not answer.
2. “Documents subject to a specific legal duty of retention.” An attorney should not discard documents subject to “an independent duty of retention” from sources such as: (a) DR 9-102(D), which expressly requires lawyers to keep retainer agreements and other important records for seven years; (b) DR 5-105(E), which requires a law firm to check for conflicts of interest, and thus may require lawyers to keep certain documents (citing “Do I Have to Keep These Old Files?,” NYPRR, April 1998); and (c) court rules such as 22 NYCRR §603.15 and §691.12(b), which require lawyers to maintain certain records. The duty to maintain such documents is “personal to the lawyer,” so a lawyer “cannot satisfy his ethical obligations by delivering such documents to the client for safekeeping along with the client’s file. The lawyer should keep them for himself.”
3. “Documents a client is obligated to keep.” Regulations in fields such as accounting, securities, corporate law, and tax law may require clients to maintain certain documents. “The lawyer ethically may deliver these documents to the client so long as the lawyer informs the client of the pertinent legal obligations.” But if the lawyer cannot deliver these documents, then the lawyer should keep them on the client’s behalf “for at least the legally prescribed period or for longer if the client might have a foreseeable need for the documents after expiration of the period mandated by law.”
4. “The remaining majority of documents likely to be found in a client’s file.” The lawyer may discard documents outside the first three categories whenever “consistent with the client’s instructions.” If a client has not issued instructions, then the lawyer “should make reasonable efforts to return the file to the client,” starting with a letter (a) informing the client that the attorney intends to discard the file, (b) offering to return the file to the client, (c) describing any documents that the client has a legal duty to retain, and (d) describing any documents that the client “would foreseeably need to establish substantial personal or property rights.” If an attorney cannot reach a client, the attorney “may discard the client’s file, except for documents that the client has a legal duty to retain and documents that the client foreseeably might need.” If the client is incapacitated, the lawyer “may deliver the closed files to the client’s legal representative.”
Of course, a lawyer who discards documents should do so “in a manner consistent with the attorney’s duty to maintain client confidences.” And a lawyer who keeps documents may “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.”
Soliciting Corporate Clients by Letter — NYCLA Op. 726 (10/7/1998)
To help attract new corporate clients, a law firm subscribes to a service that provides the names of parties and a summary of complaints filed each day in certain state and federal trial courts in New York City. May the law firm ethically send a letter to a named corporate defendant informing it “as a courtesy” that suit has been commenced against it and inviting the corporate defendant to contact the law firm for further information? If so, may the letter also enclose the law firm’s brochure? And may the letter also say that the law firm “has significant expertise in the area of law which is the subject of the complaint”?
In the wake of Shapero v. Kentucky Bar Assn., 486 U.S. 466 (1988), which expressly held that states cannot prohibit lawyers from sending truthful, nondeceptive solicitation letters to prospective clients, the Committee believes that the suggested letters “are permissible, as long as their contents are truthful, nondeceptive, and not misleading.” Under DR 2-105(A), a lawyer may advertise the areas of law in which the lawyer practices “provided that the lawyer refrains from characterizing himself as a specialist in a particular area.”
Roy Simon is Professor of Law at Hofstra University School of Law and author of Simon’s New York Code of Professional Responsibility Annotated.
DISCLAIMER: This article provides general coverage of its subject area and is presented to the reader for informational purposes only with the understanding that the laws governing legal ethics and professional responsibility are always changing. The information in this article is not a substitute for legal advice and may not be suitable in a particular situation. Consult your attorney for legal advice. New York Legal Ethics Reporter provides this article with the understanding that neither New York Legal Ethics Reporter LLC, nor Frankfurt Kurnit Klein & Selz, nor Hofstra University, nor their representatives, nor any of the authors are engaged herein in rendering legal advice. New York Legal Ethics Reporter LLC, Frankfurt Kurnit Klein & Selz, Hofstra University, their representatives, and the authors shall not be liable for any damages resulting from any error, inaccuracy, or omission.