ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK
COMMITTEE ON PROFESSIONAL AND JUDICIAL ETHICS
Year 1986 Ethics Opinions
THE ASSOCIATION OF
THE BAR OF THE CITY OF NEW YORK
FORMAL OPINION 1986-4
PROFESSIONAL AND JUDICIAL ETHICS
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April 30, 1986
An attorney is currently in the
process of warehousing files on closed and settled cases which,
for the most part, involved claims of negligence and malpractice.
Guidance is sought as to the ethical considerations raised by the
retention and disposition of such files.
Preliminarily, we note that, in
some instances, the retention of files may be required by statute
or court rule, see, e.g., 22 NYCRR 603.15 (1st Dep't); 22 NYCRR
691.21 (2d Dep't), the applicability of which is a question of
law beyond the jurisdiction of this Committee.
With regard to ethical
obligations, a lawyer must consider two factors in determining
how to handle the files: first, certain documents in a lawyer's
files may belong to the client; second, in some instances, to
prevent prejudice to the client, a lawyer may have to afford the
client reasonable access to the files, even to documents
belonging to the lawyer. Cf. N.Y. State 398 (1975). The ethical
obligations, therefore, require that a balance be struck between
the client's ownership interest in the papers as well as the
client's possible need for the information in the future and the
lawyer's interest in avoiding being overburdened with closed
Initially, it must be determined
whether the papers in question, including work product, belong to
the client or to the attorney. This is a legal question beyond
our jurisdiction. See N.Y. City 81-44; see also Kentucky Op.
E-300 (1985), Maryland Op. 82-11 (1981), ABA Inf. Op. 1385
(1977). We note, however, that some ethics committees have
addressed this subject and have reached differing conclusions.
See, e.g., N.Y. State 398 (1975) (work product of attorney
belongs to attorney), Oregon Op. 494 (1983) (legal analysis
belongs to attorney unless attorney specifically agreed to
provide it to client), Michigan Ops. CI-926 (1983) and CI-722
(1982) (work product of attorney belongs to the client).
With respect to papers that have
been determined to be the client's property, the lawyer should
contact the client before destroying such papers and ask whether
the client wants delivery of the closed files. See N.Y. City
82-15. We do not believe that there is any hard and fast rule as
to when the client should be contacted, and good judgment should
govern in making this decision. While an attorney is not
ethically obligated to do so, the Committee believes that it is
good practice to discuss with the client the retention and
disposition of the files at the time of the termination of the
matter, or, in appropriate circumstances when there is a
continuing client relationship, at the conclusion of the
representation. But see Nassau County Op. 81-10 (retain file for
seven years after matter closes and then contact client).
Alternatively, the lawyer may
simply deliver the documents to the client with appropriate
advice regarding factors the client should consider in
determining which files to preserve. Where the lawyer is unable
to contact the client, the lawyer should be guided by the
foreseeable need for the documents in question in determining
whether to destroy them.
With respect to papers that belong
to the lawyer, or papers as to which no clear ownership decision
can be made, the answer to the questions whether and how long to
retain such files is primarily a matter of good judgment, in the
exercise of which the lawyer should bear in mind the possible
need for the files in the future. See ABA Inf. Op. 1384 (1977);
N.Y. State 460 (1977). The ABA guidelines, which follow, are
1. Unless the client consents, a
lawyer should not destroy or discard items that . . . probably
belong to the client. . . .
2. A lawyer should use care not to
destroy or discard information that the lawyer knows or should
know may still be necessary or useful in the assertion or defense
of the client's position in a matter for which the applicable
statutory limitations period has not expired.
3. A lawyer should use care not to
destroy or discard information that the client may need, has not
previously been given to the client, and is not otherwise readily
available to the client, and which the client may reasonably
expect will be preserved by the lawyer.
4. In determining the length of
time for retention or disposition of a file, a lawyer should
exercise discretion. The nature and contents of some files may
indicate a need for longer retention than do the nature and
contents of other files, based upon their obvious relevance and
materiality to matters that can be expected to arise.
5. A lawyer should take special
care to preserve, indefinitely, accurate and complete records of
the lawyer's receipt and disbursement of trust funds.
6. In disposing of a file, a
lawyer should protect the confidentiality of the contents.
7. A lawyer should not destroy or
dispose of a file without screening it in order to determine that
consideration has been given to the matters discussed above.
8. A lawyer should [consider
preserving], perhaps for an extended time, an index or
identification of the files that the lawyer has destroyed or
disposed of. [We have modified this guideline because we do not
believe that, in all instances, the retention of an index is
Accordingly, subject to the legal
questions noted above which we do not resolve, the ethical
criteria and guidelines that have been discussed provide a
framework for an attorney in exercising judgment and discretion
concerning the retention, delivery or destruction of files.