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Contact:
Eric Friedman
(212) 382-6754
Kathryn Inman
212-382-6656

New York City Bar Association Issues Formal Ethics Opinion on Disposition of Client Files at the End of an Engagement

New York , February 2, 2010 – In its first formal ethics opinion of the year, the New York City Bar Association’s Committee on Professional and Judicial Ethics addresses whether a lawyer and client may, by agreement at the outset of a representation, agree to the disposition of the client’s files at the engagement’s conclusion. The opinion is intended to fill a gap in existing ethics opinions that have focused almost exclusively on an attorney’s obligations absent an express agreement with, or directive from, the client.

The opinion concludes, “[A]n attorney may include a provision in retainer agreements and engagement letters authorizing the lawyer at the conclusion of a matter or engagement to return all client documents to the client or to discard some or all such documents (other than original deeds, wills or similar documents with intrinsic value). Prior to discarding any documents, however, the attorney must take reasonable steps to preserve all documents that she has an obligation to retain or return to the client.”

The new opinion offers guidance on consensual, written arrangements for the final disposition of client files, and includes a sample engagement provision that can be used as a general template to be modified for specific circumstances.

The Committee’s analysis includes a framework for categorizing documents when drafting a provision in an engagement letter governing the disposition of a client’s file. “Category 1” documents are those that should obviously be returned to the client (documents with intrinsic value or those that directly affect property rights such as wills, deeds or negotiable instruments). “Category 3” documents obviously need not be returned to the client (because they would furnish no useful purpose in serving the client’s present needs for legal advice). The opinion focuses most specifically on “Category 2” documents, those “documents that a lawyer knows or should know may still be necessary or useful to the client, perhaps in the assertion of a defense in a matter for which the applicable limitations period has not expired.”

The opinion also addresses what to do when the client wants his files destroyed even though the lawyer advised him to retain documents, and when the lawyer is unable to locate the client at the conclusion of the engagement. The opinion may be viewed online at http://www.nycbar.org/ethics/ethics-opinions-local/2010-opinions/785-use-of-client-engagement-letters-to-authorize-the-return-or-destruction-of-client-files-at-the-conclusion-of-a-matter.

About the Association

The New York City Bar Association (www.nycbar.org) was founded in 1870, and since then has been dedicated to maintaining the high ethical standards of the profession, promoting reform of the law, and providing service to the profession and the public. The Association continues to work for political, legal and social reform, while implementing innovative means to help the disadvantaged. Protecting the public’s welfare remains one of the Association’s highest priorities.