Duty to Safekeep Client Files upon Suspension, Disbarment, Disappearance, or Death of Firm Lawyer
Adopted: July 19, 2013
Opinion rules that the partners and managerial lawyers remaining in a firm are responsible for the safekeeping and proper disposition of both the active and closed files of a suspended, disbarred, missing, or deceased member of the firm.
Inquiry #1:
The law firm A & B, PA, was formed as a professional corporation in 1992. Lawyer A and Lawyer B were the initial shareholders in the firm. In 1993, Lawyer C joined the firm and became a shareholder. The professional corporation’s articles of incorporation were amended to change the professional corporation’s name to A, B & C, PA.
In 1998 Lawyer C closed a real estate transaction for a client of the firm. The file was placed among the firm’s inventory of client files.
In 2008 Lawyer A and Lawyer B learned that Lawyer C had committed numerous embezzlements from the firm’s trust account in a cumulative amount exceeding $1,000,000. Lawyer C (hereinafter, “C”) was ousted from the firm and was subsequently disbarred. The firm’s articles of incorporation were amended to change the professional corporation’s name back to A & B, PA. When C was ousted from the firm, Lawyer A and Lawyer B reviewed the files for the clients of the firm whose legal services had been provided by C. When their review was completed, Lawyer A and Lawyer B instructed or allowed C to take possession of those client files. Since 2008, paper client files have been in a storage facility to which C’s lawyer has the key, and electronic client files, to the extent that there were any, have been stored in a password-protected manner by C’s lawyer.
The client whose transaction was closed by C in 1998 is now seeking her file, which is believed to be in the storage facility. C is in prison. C’s lawyer cannot access the storage facility due to physical infirmity. However, C’s lawyer is willing to give Lawyer A and Lawyer B the key to the storage facility, and to authorize them to access and retrieve the client files. Lawyer A and Lawyer B assert that they are not obligated to help the client obtain her file.
When a lawyer leaves a firm and is subsequently disbarred, what is the professional responsibility of the lawyers remaining with the firm relative to the safekeeping and proper disposition of the files of the clients of the disbarred lawyer?
Opinion #1:
The remaining lawyers in the firm are responsible for the safekeeping and proper disposition of both the active and closed files of the disbarred lawyer in their custody. As used in this opinion, “files” applies to both electronic and paper files unless otherwise indicated. Because of the risk of loss, closed files may not be relinquished to a disbarred lawyer who is no longer subject to the regulation of the North Carolina State Bar and no longer required to comply with the Rules of Professional Conduct.
Rule 1.15 requires a lawyer to preserve client property, including information in a client’s file such as client documents and lawyer work product, from risk of loss due to destruction, degradation, or disappearance. See also RPC 209 (noting the “general fiduciary duty to safeguard the property of a client”); RPC 234 (requiring the storage of a client’s original documents with legal significance in a safe place or their return to the client); 98 FEO 15 (requiring exercise of lawyer’s “due care” when selecting depository bank for trust account); and 2011 FEO 6 (allowing law firm to use “cloud computing” if reasonable care is taken to protect the security of electronic client files).
If a lawyer practices in a law firm with other lawyers, the responsibility to preserve a client’s property, including the client’s file, is not solely the responsibility of the lawyer providing the legal services to the client. Rule 5.1(a) of the Rules of Professional Conduct requires the partners in a law firm and all lawyers with comparable managerial authority to make “reasonable efforts to ensure that the firm…has in effect measures giving reasonable assurance that all lawyers in the firm…conform to the Rules of Professional Conduct.”
The professional responsibilities of the partners and the lawyers with managerial authority relative to the files of the firm are the same, regardless of whether the lawyer has departed the firm because of suspension, disbarment, disappearance, or death.1 The lawyers are responsible for (1) ensuring that any open client matter is promptly and properly transitioned to the lawyer of the client’s choice, and (2) retaining possession of and safekeeping closed client files of the departed lawyer until the requirements for disposition of closed files set forth in RPC 209 can be fulfilled. See, e.g., RPC 48 (explaining duties upon firm dissolution including continuity of service to clients and right of clients to counsel of their choice).
All firms should recognize the possibility of suspension, disbarment, disappearance, or death of a firm lawyer. Law firms should plan for and include in their operating procedures a means or method to access and secure all client files for which the firm would be responsible if such an event were to occur.
Inquiry #2:
Do Lawyer A and Lawyer B have a duty to help a former client of the firm obtain the file relating to the legal services provided to her by C when C was a member of the firm?
Opinion #2:
Yes, when the location of a file is known, the lawyers have a duty to take reasonable measures to assist a client to obtain the file. See Opinion #1 and RPC 209.