Ethics Opinion 950

Saving law firm mail in paper or electric form

New York State Bar Association
Committee on Professional Ethics

Opinion  950 (12/17/12)
Topic: Saving law firm mail in paper or electronic form
Digest: Law firm that retains electronic copies of mail may destroy the original paper mail, except when it finds that particular items must be retained in paper form, if it follows reliable procedures to identify and retain those particular items.
Rules: 1.6, 1.15(d)

FACTS

1.                   The inquirer is a legal services agency that provides services to members of a union. The Agency is located within the headquarters of the Union.

2.                    Mail received by either the Agency or the Union is received and processed by a third party vendor. The Agency has confidentiality agreements with the personnel of the Vendor who receive and process mail.

3.                   The Agency proposes to have the Vendor scan all mail and email it to the appropriate attorneys or other legal service personnel. Also, in some cases, the original “hard copy” of the mail would “automatically” be sent to the addressee.  According to the inquiry, this would include documents “for which an original is required,” such as “motions, deeds, all client original signature documents, checks, transcripts, title documents [and] all escrow account statements and related documents.”

4.                   In other cases, the Vendor would retain the hard copy of the mail for one month. During that time, lawyers or other legal staff who receive the emailed scan of the mail may click on the item and thereby cause the Vendor to deliver the hard copy of that mail item to the addressee. After one month, if no legal staff has requested retention, the Vendor would destroy the hard copy of the mail in a secure manner, but the scanned copy would be maintained on a secure server indefinitely. 

QUESTIONS

5.                   May the Agency ethically implement a plan to destroy the hard copy originals of certain items of mail, and retain only electronic copies, when legal staff has not requested that the hard copies of those particular items be delivered so as to allow retention?

OPINION

6.                   Before considering the question asked, we note briefly the issue of confidentiality.  “A fundamental principle in the client-lawyer relationship” is that, in the absence of the client’s informed consent or except as permitted or required by the Rules of Professional Conduct (the “Rules”), “the lawyer must not knowingly reveal information gained during and related to the representation, whatever its source.”  Rule 1.6, Cmt. [2].  The attorney not only has an obligation to refrain from revealing such information, but also must exercise reasonable care to prevent its disclosure or use by “the lawyer’s employees, associates, and others whose services are utilized by the lawyer.”  Rule 1.6(c); see also Rule 5.3(b) (specifying when a lawyer is responsible for conduct of an associated nonlawyer that would be a violation of the Rules if engaged in by a lawyer). 

7.                   The employees of the Vendor will have access to confidential client information.  We have not been given the details of the Agency’s confidentiality agreements with personnel of the Vendor.  We may point out, however, that those agreements, and the Agency’s oversight over the Vendor’s adherence to them, must be sufficient to constitute reasonable care in protecting confidential information.

8.                   The inquiry also does not provide details about the servers on which electronic copies of mail will be kept, and in particular does not indicate whether those servers would be maintained by the Vendor or the Agency.  In any event, the Agency must exercise “reasonable care to ensure that the system is secure and that client confidentiality will be maintained,” N.Y. State 842 (2010), and some of our opinions provide guidance as to how such care might be exercised.[1]

9.                   We now turn to the question about destroying hard copies of mail items.  In a recent opinion, we discussed ethical requirements to retain documents in their original form.  N.Y. State 940 (2012).  That opinion was not focused on items of mail; it related to records in general, and we think its principles apply in the more specific context presented here.

Items that must be retained in their original form

10.               The inquirer has recognized that certain mail items need to be retained in their original hard copy form.  This includes certain items specifically listed in the Rules, such as bank statements, when those items were received as paper copies in the first place.  Rule 1.15(d)(1)(viii).  It includes other kinds of documents as well, such as promissory notes and deeds.  See N.Y. State 940 ¶¶ 9 – 10 & 13 – 14 (2012) (noting that whether records must be maintained in their original form will depend on the kind of record involved, and giving examples of documents in this category).