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Attorney E-Newsletter

April 2007

PBA Committee on Legal Ethics Defines File Handling Responsibilities

The Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility has issued a major formal opinion addressing several issues that arise out of the recurrent problem of file management. The opinion is posted at the Disciplinary Board Web site here. This nine-page opinion thoroughly examines the law of Pennsylvania on issues such as what constitutes the lawyer’s file, who owns different parts of the file, what a lawyer’s responsibilities are for providing file materials to a client, and how the cost of doing so should be allocated. It is far beyond the scope of this newsletter to recapitulate the reasoning and conclusions of such a comprehensive tract; any Pennsylvania lawyer who handles client files should read the opinion itself and carefully digest its analysis. This note will be limited to providing a map of the issues the opinion addresses and the major conclusions it reaches.

The opinion begins with the principle that “client files are maintained by a lawyer for the benefit of his or her principal, the client.” The Commonwealth Court case of Maleski v. Corporate Life Ins. Co., 163 Pa. Commw. 36, 641 A.2d 1 (1994), states a general principle that "once a client pays for the creation of a legal document, and it is placed in the client's file, it is the client, rather than the attorney, who holds a proprietary interest in that document." However, the Supreme Court of Pennsylvania has not spoken definitively on the issue of ownership of the file.

The Committee notes that the file materials are also essential business records of the lawyer. It identifies two separate issues regarding file possession and access: access to the file by the client while the representation is ongoing, and possession of the file after the representation ceases. It states a general rule that “items such as original client business records, deeds and other real estate records, estate papers, insurance policies, and personal papers should be returned to the client unless there is a specific agreement or other reason for the lawyer to retain custody.”

The second section of the opinion deals with what constitutes the “client file.” Primary documents establishing the events of the client’s case, such as pleadings, documentary evidence, and correspondence are clearly a main component of the file. However, “other documents relating to that particular representation, such as electronic mail messages, telephone notes, research notes, [and] billing materials” may also be part of the file, and these may exist or be stored in locations other than the physical folders of the file. There may also be internal documents arising from “administrative functions involved with running a law practice (such as assignment memos given to subordinate lawyers).” In an age of electronic practice, there may be e-mail, computer files, and other documents stored in multiple locations and with small variations between different recipients. The Committee notes that some items may not be part of the file, such as “memoranda and notes generated primarily for a lawyer's own purposes in working on the client's problem.” In light of such complexity, the Committee acknowledges that “it is nearly impossible to define on a priori basis what must be part of the client's file.”

As to who owns what in this mass of material, the Committee notes that there are two major points of view: a majority view is called the “entire file” view, which holds that “client is entitled to everything in the lawyer’s possession necessary to the continued representation of the client,” and a minority called the “limited file” view, holding that the client is only entitled to “core” materials, such as filed pleadings, correspondence and final memoranda on issues significant to the representation.” The Committee considers the majority “entire file” view as the prevailing rule in Pennsylvania.

In the third section of the Opinion, the Committee turns to the question of who bears the cost of making necessary copies of the file. The Committee recognizes that the terms of the client-lawyer agreement may shape the lawyer’s responsibilities. It notes,

Client requests for file materials, or copies of file materials, can arise in at least three separate contexts: (1) during the course of representation; (2) during transfer of representation between counsel; and (3) following representation.

The Committee believes that, in each of these contexts, the cost of copying and delivering file materials, as well as the cost of compiling and delivering the actual file, should be handled according to the agreement between the lawyer and the client regarding costs. The Committee recommends making some provision for these circumstances in an engagement letter.

The Committee affirms that generally the lawyer does have a right to make and retain copies of the file for the lawyer’s own use, but echoes Maleski in concluding that “where the client has paid for the creation of the file, the cost of the lawyer’s copy should be borne by the lawyer, absent agreement to the contrary.”

The core of the opinion lies in two compact summaries of its reasoning the Committee provides. On Pages 6-7, the Committee provides, in bold-faced type, a list of eight kinds of items it considers to be parts of the file to which the client is entitled:

  1. briefs, pleadings, discovery requests and responses;
  2. transcripts;
  3. affidavits and witness statements;
  4. memoranda of law, case evaluations, or strategy memoranda;
  5. correspondence (including e-mail);
  6. original documents with legal significance, such as wills, deeds and contracts;
  7. documents or other things delivered to the lawyer by or on behalf of the client; and
  8. invoices or statements sent to the client.

The Committee then specifies, on Page 7, five kinds of documents to which the client may not be entitled:

  1. drafts of any of the items described above, unless they have some independent significance;
  2. attorney notes from the lawyer’s personal files, unless those notes have been placed by the attorney in the case file because they are significant to the representation;
  3. copies of electronic mail messages, unless they have been placed by the attorney in the file because they are significant to the representation;
  4. memoranda that relate to staffing or law office administration;
  5. items that the lawyer is restricted from sharing with the client due to other legal obligations (such as “restricted confidential” documents of a litigation adversary that are limited to counsel’s eyes only).

The opinion closes with a set of six recommendations for file management policies:

  1. developing a detailed file storage, management, and retention policy;
  2. a lawyer or lawyer's assistant (with supervision) making decisions as to how and when to destroy part or all of the file;
  3. considering statutes of limitations, substantive law, tolling agreements or tolling jurisprudence, the nature of the particular case and the client's particular needs when deciding to destroy a file;
  4. client confidentiality obligations continue after the representation ends and should be taken into account in file disposition;
  5. an index should be maintained regarding all files destroyed or returned to clients; and
  6. the lawyer and client can consider a specific agreement for handling the client file and data in complex cases.

 

Understand that this is a brief and oversimplified summary of a detailed and nuanced analysis, and no one should take this summary as a substitute for reading the opinion and carefully evaluating the many considerations it identifies in the increasingly complex process of file management. The Committee has put a great deal of thought and effort into providing Pennsylvania practitioners with detailed guidance, and members of the bar who handle client files would be wise to benefit from this guidance.

New Leadership on Disciplinary Board

Effective April 1, 2007, Jonathan H. Newman of Philadelphia has been named Chairman of the Disciplinary Board for 2007-2008. Smith Barton Gephart of Harrisburg, Dauphin County, has been named Vice Chair.

Stewart L. Cohen of Philadelphia has been selected to serve a term as a member of the Disciplinary Board.

Law Means Never Having to Say You’re Sorry

Let’s say, entirely hypothetically, that a lawyer realizes he or she has mishandled a client’s case (not that this would ever happen among present company, of course). Should the lawyer apologize?

According to a report in the ABA/BNA Lawyer’s Manual on Professional Conduct, this question was posed to a panel of legal malpractice defense experts at the 2007 Legal Malpractice and Risk Management Conference. The panelists generally expressed disapproval of role of the apology in malpractice defense. The panelists voiced concern that the risk that an apology would be construed as an admission of liability outweighed the benefit it offered. The panelists recommended that where an apology may be useful in reaching a resolution of a matter, it is better for the apology to be delivered by counsel for the lawyer, or by another partner in the lawyer’s firm, than by the lawyer himself or herself. The article appears in the March 21, 2007 edition of the Lawyers’ Manual of Professional Conduct.

Texting, Redux

Last month we warned you of a possible security risk in text messaging. A number of news articles raised a related concern about security from text messaging – specifically, driving while texting, now referred to as “DWT.”

Since texting normally involves use of hands, the eyes1, and the brain,most or all of which are generally thought to be usefully engaged in the process of driving, DWT would seem to be an activity worthy of a Darwin Award. However, the practice seems to be widespread. Washington seems poised to become the first state to officially ban text messaging while driving, in the aftermath of an incident in which a driver caused a four-car, one-bus pileup by checking messages on his BlackBerry® while driving on a busy freeway.2 Similar measures are pending in several other states, including the District of Columbia and New Jersey, but none of the published lists mention Pennsylvania.

It is not the policy of this newsletter to take positions on matters of pending legislation, but efforts to make DWT illegal raise in our minds a troubling question: you mean it isn’t?

1 Contra, see Matt Damon in The Departed.

2 Lest we of seasoned years sneer at this as a generational foible of the young, let the record reflect that the driver in question was 53 years old and driving a Dodge Caravan minivan.

Quizlet

You hear the fax churning out some paper, so you pick it up and discover to your amazement that opposing counsel has mistakenly faxed a confidential memo regarding trial strategy to you, which was clearly intended for co-counsel. Your responsibilities under the Rules of Professional Conduct are:

    1. To return the fax to opposing counsel.
    2. To destroy the fax.
    3. To forward the fax to its intended recipient.
    4. To notify the sender.
    5. More than one of the above.
    6. Your only obligation is to your client. Read it, use it, and you needn’t tell anyone.

Answer after Tip of the Month, below.

Tip of the Month

Most law offices have “intended recipient” notices on their fax cover sheets, but subscriber Lesley Renee Adams reminds us that lawyers who use e-mail may also find it useful to include such a notice in the signature block of their e-mails, which can be easily done with most e-mail client applications. She uses and suggests the following language:

This e-mail, sent by Lesley Renee Adams, Attorney At Law, is intended only for the use of the individual or entity to which it is addressed and may contain information that is privileged, confidential and exempt from disclosure under applicable law. If the reader of this message is not the intended recipient, or the employee or agent responsible for delivering the message to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this e-mail in error, please destroy it and notify us immediately.

While some commentators have disputed whether such disclaimers have much legal effect, others have suggested that disclaimers specifically preserving claims of privilege and confidentiality may be helpful in preserving the attorney-client privilege as to mistakenly divulged communications, where there is a question of fact as to whether the privilege has been waived.

Of course, whatever the content of a fax or e-mail notification statement, it does not alter the responsibilities of the lawyer-recipient under the Pennsylvania Rules of Professional Conduct. Rule 4.4(b) states that “A lawyer who receives a document relating to the representation of the lawyer's client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.” The Comments to Rule 4.4 state, “Whether the lawyer is required to take additional steps, such as returning the original document, is a matter of law beyond the scope of these Rules, as is the question of whether the privileged status of a document has been waived. . . Some lawyers may choose to return a document unread, for example, when the lawyer learns before receiving the document that it was inadvertently sent to the wrong address. Where a lawyer is not required by applicable law to do so, the decision to voluntarily return such a document is a matter of professional judgment ordinarily reserved to the lawyer.”

So the responsibilities of unintended recipients to save you from the consequences of your error are limited, and there is no substitute for caution before hitting “send.”

Quizlet Answer: As the foregoing makes clear, the correct answer is “D.”

Gotta Tip?

If you have a helpful practice you have discovered, or something you have seen other lawyers do which suggests ethical problems to you, we welcome your suggestions as to possible Tips and article topics. If we use your idea, we will give you credit. Or, if there is some issue you would like to see this Newsletter address, or if you have constructive criticism or suggestions, please let us know. Write to comments@padisciplinaryboard.org. We would be glad to hear from you.