ETHICS OPINION
The Supreme Court of Texas appoints the nine members of the Professional Ethics Committee from the bar and the judiciary and designates one of the members as chair. According to section 81.092(c) of the Texas Government Code, “Committee opinions are not binding on the Supreme Court.” The Committee posts drafts of its proposed opinions online at texasbar.com/pec for public comment before the opinions are finalized and printed in the Bar Journal.
Opinion No. 684, August 2019
QUESTION
PRESENTED
Under the Texas Disciplinary Rules
of Professional Conduct, may a lawyer, who is departing a law firm, take
the firm’s only copy of client files in which the lawyer personally
represented the clients and delete client files, documents, or data from
the firm’s electronic document repository and devices without approval
of the law firm?
Statement of Facts
Various clients engaged a law firm, which assigned a lawyer to handle
the client representations. Later, the assigned lawyer decided to leave
the firm. The legal services agreements provided that the clients
engaged the law firm for representation and did not identify the
departing lawyer as their sole counsel or grant that lawyer the
authority to determine the disposition of the firm’s client files,
documents, and data.
While departing the firm, the lawyer took various client files upon
which the lawyer had worked, including the firm’s only copies of its
paper files and copies of client files, documents, and data maintained
in the firm’s electronic document repository and on its devices. The
lawyer then deleted all the electronic client files, documents, and data
from the law firm’s electronic document repository and devices. Thus,
the law firm was left without any client files, documents, or data.
The lawyer refused to provide copies of the client’s paper files or
its electronic files, documents, or data to the law firm and refused to
identify the client information that was taken or deleted. The lawyer
refused to provide letters from the clients to the law firm authorizing
transfer of the files. But the lawyer did indicate that copies of the
client files would be provided to the affected clients upon those
clients’ direct requests to the lawyer.
Discussion
Professional Ethics Committee Opinion 670 (March 2018) addressed a
similar scenario in which a departing lawyer made electronic and paper
copies of client documents regarding matters in which the lawyer
personally represented the client, even though the departing lawyer was
not going to represent the client at the lawyer’s new firm. The
departing lawyer’s former law firm learned of the copying and retention
of its client documents by the lawyer and demanded their return.
The committee concluded that a lawyer who leaves a law firm may, at
the lawyer’s expense, make and retain copies of his or her former
clients’ documents that were generated in matters in which the lawyer
personally represented the clients, subject to the lawyer’s
confidentiality obligations under Rule 1.05 of the Texas Disciplinary
Rules of Professional Conduct. Id. The committee also concluded
that, in the absence of the client’s instructions to the contrary, the
consent of the lawyer’s prior law firm or former client was not required
for a departing lawyer to make and retain copies of a client’s documents
if the lawyer is reasonably responsive to the former client’s request
for copies of documents retained by the lawyer. Id. See also Opinion
657 (May 2016) and Opinion
627 (April 2013).
The question presented here is slightly different from the question in
Opinion
670. Here, the departing lawyer took the only copy of certain client
files, documents, and data from his former law firm and deleted client
files, documents, and data from the firm’s electronic document
repository and its devices without the firm’s permission and with no
client directive that authorized the departing lawyer to do so.
Although under Opinion 670 the departing lawyer may make copies of
client documents for clients whom the lawyer personally represented at
the former firm (and at the lawyer’s expense), that opinion does not
authorize the lawyer to take the firm’s only copy of tangible client
files and delete client files, documents, and data from the firm’s
electronic document repository and devices. The affected clients had
engaged the law firm and not the departing lawyer as their counsel.
Therefore, the firm may retain a copy of all client files, including
those files, documents, and data stored in the law firm’s electronic
document repository and on its devices.
Even if the affected clients had authorized the departing lawyer to
take the firm’s only tangible copy of their client files and delete
their electronically stored files, documents, and data from the firm’s
electronic repositories and devices, the firm may retain a copy of the
client files, documents, and data, notwithstanding the client’s
instructions to the contrary. Although a client has a right to demand
its “original” file from its counsel, nothing in the rules prohibits a
firm from retaining a copy of the client’s file, at the firm’s expense,
subject to the firm’s continuing duty of confidentiality under Rule 1.05
and its exceptions. Absent an agreement with the law firm consistent
with applicable law and rules, a client does not have the right to
demand that a firm delete or destroy all of its copies of the client
file, documents, or data; therefore, a lawyer departing a law firm
cannot rely on any alleged client instruction that the client’s current
or former law firm retain nothing from the representation.
Furthermore, under Rule 1.14(a), a lawyer is required to retain
certain client information, such as complete records of its client trust
accounts and other property, for at least five years after the
termination of the representation. See Opinion
627 for a discussion of “other property” under Rule 1.14.
Additionally, exceptions to confidentiality under Rule 1.05(c) and (d)
permit a lawyer to use or disclose client confidential information under
certain circumstances after the representation has concluded. For
example, the former firm may need to possess a copy of the client file
and client data to answer future questions by the client about the
representation, to respond to court orders or as required by other law,
and to enforce a claim or establish a defense in a current or subsequent
controversy between the law firm and the client. Additionally, Rule
1.15(d) provides:
“Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payments of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law only if such retention will not prejudice the client in the subject matter of the representation.”
A former firm’s or former lawyer’s retention of a copy
of client documents and information is not prejudicial to the client if
the client is provided with the same documents and information upon the
client’s request.
The committee expresses no opinion on whether the departing lawyer’s
conduct violated any criminal laws as such a determination is beyond the
jurisdiction of this committee. But, if the departing lawyer has
committed theft (or some other serious crime or criminal act that
reflects adversely on the lawyer’s honesty, trustworthiness or fitness
as a lawyer in other respects) in taking the firm’s only copy of
tangible client files or in deleting the files in its electronic
document repository and on its devices, those acts are prohibited by
Rule 8.04(a)(2). Furthermore, under Rule 8.04(a)(3), a lawyer’s actions
may indicate dishonesty and deceit in how and why the lawyer removes or
deletes the client information from the firm, including an intent to
conceal the contents of those former client files, documents, and data
(and a possible breach of a legal duty) from the firm or the affected
clients.
Conclusion
Under the Texas Disciplinary Rules of Professional Conduct, a lawyer
departing a law firm may not remove the firm’s only tangible copy of
client files or delete client files, documents, and data from the firm’s
electronic document repositories and devices without the firm’s
consent.TBJ
