Retention of Email in a Client's File
Adopted: October 18, 2002
Opinion rules that whether electronic mail should be retained as a part of a client's file is a legal decision to be made by the lawyer.
Inquiry #1:
Attorney represented Client in a domestic matter for 18 months. Attorney and Client exchanged e-mail messages, sometimes on a daily basis, regarding routine issues arising in Client's custody matter. Should the e-mail messages be retained, in either an electronic or paper format, as a part of Client's legal file?
Opinion #1:
A lawyer must exercise his or her legal judgment when deciding what documents or information to retain in a client's file. Whether the lawyer should retain an e-mail communication, or any other written communication or document, in a client's file depends upon the requirements of competent representation under the circumstances of the particular case. Rule 1.1. Competent representation includes organized record-keeping practices that safeguard documentation and information so that the lawyer remains abreast of the status of the case, and is adequately prepared to handle the client's matter. See Rule 1.1 cmt. [5]. Competent representation may also require the lawyer to retain sufficient documentation to protect the client's interests, to provide assistance to successor counsel, and to protect the lawyer in the event the representation of the client is ever questioned. See generally Rule 1.16(d) and cmt. [11].
Inquiry #2:
Attorney decides that an e-mail communication should be retained. The communication may be stored in electronic format (on the computer or by downloading the communication to a computer disk) or in a paper format by printing the communication. May Attorney store the communication in an electronic format or should it be printed to create a hard copy?
Opinion #2:
A lawyer must also exercise legal judgment, subject to the duty of competent representation, when deciding which format is the most appropriate for storing communications, documents, and information generated during the representation of a client. See, e.g. , RPC 234 (permitting the storage of inactive client files in an electronic format).
Inquiry #3:
Upon termination of the representation, Client requests her file. What is Attorney's duty with regard to production of e-mail communications generated during Client's representation?
Opinion #3:
Rule 1.16(d) states that, upon termination of a representation, a lawyer shall take steps as reasonably practicable to protect the client's interests, including "surrendering papers and property to which the client is entitled." CPR 3 ruled that, when a representation is terminated, the lawyer must give the client a copy of any document in the client's file that may be helpful to successor counsel except personal notes and unfinished work product. If a lawyer determines that an e-mail communication (whether in electronic format or hard copy) should be retained as a part of a client's file, at the time of the termination of the representation, the lawyer should provide the client with a copy of the retained -e-mail communication, together with the other documents in the client's file, subject to the limitations set forth in CPR 3.
Inquiry #4:
Attorney saved e-mail communications relating to Client's case in a file on his computer. Converting the e-mail communications to a paper format will be expensive and time-consuming. Upon the termination of the representation, may Attorney give Client a computer disk containing the e-mail communications (or transmit them to Client in some other electronic format) even if Client specifically requests paper copies of the e-mail communications?
Opinion #4:
Yes. Rule 1.16(d) requires the lawyer to take "reasonably practicable" steps to protect the interests of the client upon termination. In light of the widespread availability of computers, this standard is met if Attorney provides Client with a computer disk containing the retained e-mail communications or otherwise transmits them to Client in an electronic format.