This opinion has been questioned and modified in ethics opinion R-19, effective August 4, 2000.

R-12

September 27, 1991

SYLLABUS

The Michigan Rules of Professional Conduct effective October 1, 1988, apply to all lawyers licensed to practice in the state, including lawyers employed by governmental agencies.

Notice regarding disposition of a representation file closed on or after October 1, 1988, shall be given to a client either when the lawyer-client relationship is established or at the conclusion of the representation matter.

Representation files closed prior to October 1, 1988, may not be destroyed without reasonable notice to the client. If reasonable efforts have been made to obtain the client's input and the client fails to respond or cannot be located, the lawyer must determine on a case by case basis whether the lawyer has done enough to permit destruction of the file in the absence of the client's input. Reasonable efforts vary case by case, but at a minimum require the lawyer to give notice to the client by regular and certified mail, addressed to the client's last known address. A lawyer is not automatically required to provide notice by publication in local newspapers.

If a microfilm record is to be maintained in lieu of a paper file, a lawyer is not required to provide notice to a client prior to destroying the paper file except as to paper documents contained in the file which are personal to the client, which are original documents of which duplicates would not be satisfactory, or which are documents whose destruction will prejudice the client. Before a microfilm file is destroyed, client notice must be provided in compliance with paragraphs 2 or 3 above, depending upon the date the file is closed.

References: MRPC 1.0, 1.6, 1.15, 5.1, 8.4; R-5; CI-758, CI-922.

TEXT

The office of the public defender of a large, Michigan metropolitan area is in the process of microfilming closed client files, some dating back as far as 1971. Once the files are microfilmed, they will be destroyed. The office proposes notifying former clients of their entitlement to their files at their

last known addresses as well as by virtue of notices published in local newspapers. The inquiry requests the Committee's opinion as to whether the standards set forth in the Michigan Rules of Professional Conduct are applicable to a large public defender's office and government agency as they are to private practitioners and, if so, whether the proposed notice procedures are necessary to satisfy the requirements of the Michigan Rules of Professional Conduct, assuming that the files will be microfilmed and thereby preserved in that manner.

Initially, the standards set forth in the Michigan Rules of Professional Conduct apply to all lawyers, whether in private practice or otherwise. Rule 8.4 states that it is professional misconduct for a lawyer to:

"(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; . . . ."

The rule does not distinguish between lawyers who are employed by private firms and lawyers who are employed by governmental agencies. Many of the rules, including those regarding the responsibility for maintaining client files, speak to the responsibility of the lawyer and the "law firm." "Law firm" is defined in the comments following Rule 1.0, as "a lawyer or lawyers employed in a private firm, lawyers employed in the legal department of a corporation or other organization and lawyers employed in a legal services organization."

Given the applicability of the rules to the public defender's office, the question then becomes whether it is necessary to send written notification to former clients at their last known addresses as well as publishing notices in the local newspapers prior to microfilming and then destroying those client's files.

Different considerations exist for files closed prior to October, 1988, than for those closed after that date. Prior to October, 1988, the Michigan Code of Professional Conduct contained no record retention policy. The inquiry concerns files dating back to 1971. As to files closed between 1971 and October, 1988, CI-922 supplies some guidance. There the Committee stated that "[a] lawyer may not destroy closed files indiscriminately by only checking the closing date on the file and then disposing of all files closed in excess of a particular number of years." As a result, a duty is placed on the lawyer to search for client property which may be located in the file, prior to its disposal.

Formal Opinion R-5 clearly established the lawyer's duty to have in place a plan or procedure governing safekeeping and disposition of client property, including destruction of representation files. The opinion warns that the lawyer may not unilaterally destroy or discard items that clearly or probably belong to the client. Such items include those furnished to the lawyer by or in behalf of the client, the return of which could reasonably be expected by the client, and original documents (especially when not filed or recorded in the public records). The opinion then sets forth suggestions as to the disposition (or non disposition) of different types of file documents. Those items that should be retained include those which the lawyer knows or should know may still be necessary to the assertion or defense of the client's position in a matter for which the applicable statutory limitation period has not expired; information that the client may need, has not previously been given to the client, is not otherwise readily available to the client, and which the client may reasonably expect will be preserved by the lawyer; accurate and complete records of the lawyer's receipt and disbursement of trust funds.

Finally, the opinion states that 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 in the future. The Committee suggests the inquirer examine the files to ascertain the presence of documents personal to the client or which cannot be duplicated on microfilm without sacrificing the interests of the client. If the file contains no such documents, the inquirer is allowed to microfilm and destroy the contents. If it does contain such documents, the inquirer should take reasonable steps to locate the client -- specifically by contacting the client at the client's last known address by regular and certified mail. If the former client cannot be located or fails to respond, the lawyer can microfilm the documents and, after a reasonable waiting period, dispose of the file, assuming that the lawyer in his/her discretion determines that destruction will not prejudice the client's interests. The lawyer must also bear in mind that this opinion does not absolve the lawyer from legal liability as the result of negligent or improper destruction. The file must be disposed of in a manner that safeguards the confidences of the client. Shredding or incineration will produce this result, while the mere deposit in a waste receptacle will not.

The ethical considerations relating to the retention and eventual disposition of former client files are found in MRPC 1.6 and 1.15. MRPC 1.6 requires lawyers to protect the confidentiality of material stored in client files. The duty continues long after the client-lawyer relationship has terminated.

MRPC 1.15 relates to the safekeeping of a client's property. Specifically, MRPC 1.15(a) states that:

"A lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyers own property . . . . Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation." Emphasis added.

Determining what papers the client is entitled to receive, and what is the client's "property" for the purpose of this opinion are questions of law. CI-758, citing ABA i1376, provides in part:

"It must be kept in mind that the Committee cannot answer questions of law. In the gray areas, what is the lawyer's property and what is the client's property in a particular case are questions of law governed by the law of the applicable jurisdiction."

Moreover, the Committee has previously recommended that a lawyer first offer the file to the client for whom it was assembled, before destroying it, R-5. The offer could be made in any one of the following ways:

1. The offer could be made by obtaining instructions from the client with respect to the eventual disposition of the file at the time the client-lawyer relationship is established.
2. The firm and the client could agree to the course to be followed in connection with the disposition of the file at the time the particular transaction is concluded.
3. The offer may be made by locating the client when the retention period expires, and offer the former client an opportunity to retrieve the file.

If offers one or two are used, then the former client need not receive notice at the time at which the file is disposed. However, if offer 3 is used, then the lawyer must incur the expense to make a reasonable effort to notify the client before the file's destruction. We noted in R-5 that, since in the absence of specific guidance lawyers have tended to accumulate files over a number of years, there are practical problems created by relying on offer 3. If the former client cannot be located or fails to respond, the lawyer has the burden of showing that reasonable efforts were made to reach the client and that destruction of the original papers did not prejudice the former client's interests. When destruction is appropriate, the file must be disposed of in a manner that safeguards the confidences of the client. Shredding or incineration will produce this result, while the mere deposit in a waste receptacle will not.

The burden is on the lawyer to show that reasonable efforts have been made to notify the client. In RI-38 we discussed "reasonable efforts" to locate a client in order to return trust monies, before such monies escheated to the state. "Reasonable steps" may vary from case to case, depending upon the type of property held, but include at a minimum a letter by regular mail and certified return receipt mail to the client's last known address, and checking with the U.S. Postal Service to determine whether a forwarding address has been filed. A lawyer is not automatically required to provide notice by publication in local newspapers.

Given the requirements of MRPC 1.15 and R-5 and the intention of the inquirer to microfilm file contents, can a lawyer avoid the expense of notification to clients who, in all likelihood, will not be found at their last known addresses?

If an entire file is comprised of pleadings and other documents which are wholly available as permanent records of the presiding court, the lawyer need not notify the client prior to destroying the file in the lawyer's possession.

Microfilming presents special considerations. Although a "paper file" can be recreated from microfilm, the client's "original file" is ultimately destroyed. As a result, if a former client requested a file, he or she would be forced to receive copies instead of originals. In some circumstances, copies may not be sufficient. For example, the file could contain photographs or other personal documents belonging to the client, that were given to the lawyer as evidence in the case. If the "original file" does not contain documents personal to the client, or if the file contains only documents that are available from the public record, and the client's interests are protected in a microfilm copy, then the lawyer need not obtain client input prior to destruction of a paper file which is maintained on microfilm. A lawyer must use his/her best judgment in determining whether or not documents are critical to the best interests of the client; when there is doubt, the lawyer should retain the document.

Therefore, as to those representation files closed on or after October 1, 1988, a lawyer shall preserve records of client property for a period of at least five years after termination of the representation [MRPC 1.15(a)], and shall give each client notice regarding disposition of the client's representation file either when the lawyer-client relationship is established or at the conclusion of the representation matter.

As to those files closed prior to October 1, 1988, a lawyer shall make reasonable efforts to obtain client input regarding disposition of the file and its contents before client property is destroyed. If reasonable efforts have been made to obtain the client's input and the client fails to respond or cannot be located, the lawyer must determine on a case by case basis whether the lawyer has done enough to permit destruction of the file in the absence of the client's input.

Regardless of when notice is given to the client regarding disposition, the lawyer's record retention plan must have safeguards for permanently protecting certain client property such as stock certificates, original wills and contracts, and unrecorded deeds.

If a microfilm record is to be maintained in lieu of a paper file, a lawyer is not required to provide notice to a client prior to destroying the paper file except as to those paper documents contained in the file which are personal to the client, which are original documents of which duplicates would not be satisfactory, or which are documents whose destruction will prejudice the client.