Opinion 692 Retention of Closed Clients Files (Supplement)

Opinion 692 Retention of Closed Clients’ Files(Supplement) Advisory Committee on Professional Ethics Appointed by the New Jersey Supreme Court Opinion 692 (Supplement) Retention of Closed Clients’ Files The ACPE has been asked to clarify Opinion 692, in which the Committee responded to a request for advice concerning the length of time an attorney must retain a client file following the final disposition of a matter.  There the Committee held that, absent specific instructions or express agreement, and excepting “property of the client,” attorneys are required by applicable ethics rules and principles to retain and maintain closed files for seven years.  The Committee noted in Opinion 692 that RPC 1:15(a)(b) may, by implication, require that “property of the client” be maintained indefinitely.  The opinion defined such property as (1) “…that which the client has entrusted to the attorney, such as original documents, photographs, things …”  and (2) “…that which has been created or obtained by the attorney as part of the undertaking and for which the client retained the services of the attorney…”  By way of example of the latter category, Opinion 692 refers to original wills, trusts, deeds, executed contracts, corporate bylaws and minutes, and, in a footnote, points out that what may be included in this category of property depends on the nature of the representation and the matter.  See Opinion 692, fn 2. The first of the two inquiries before the Committee seeks clarification of Opinion 692 in the following respects: (a)     provision of a more specific explanation of what constitutes “property of the client,” including whether medical records, x-rays, expert reports, deposition transcripts, and answers to interrogatories constitute property of the client; (b)       whether the entire file or only that portion falling within the          definition of “property of the client” must be retained for seven years; and (c)       whether there must be separate agreements concerning destruction, prior to the expiration of the seven-year period, of the “property of the client” and the remainder of the file. In responding to this inquiry, the Committee takes this opportunity to provide guidance to the bar on a related issue, namely, (d) who bears the responsibility to retain and maintain closed client files under certain circumstances. The second inquiry seeks the Committee’s clarification in cases where the insurer hires counsel to represent its insured, (e) as between the insurer and an insured, who is the client for purposes of providing instructions on file retention or destruction. (a) Definition of Property of the Client As Opinion 692 emphasized, determining what constitutes property of the client is fact sensitive and depends on the nature of the matter and of the representation itself.  We note that the definition adopted and examples referenced in Opinion 692 are consistent with definitions adopted and examples used in other states.  See, for example, Cal. Standing Comm. on Prof’l Responsibility & Conduct, Formal Opinion 2001-157 (2001) (finding that a lawyer has an obligation to permanently safeguard original materials and materials of inherent value); Mich. Ethics Comm., Opinion R-5 (1989) (requiring record retention plans to include safeguards for permanently maintaining client property such as stock certificates, original wills, and unrecorded deeds); ABA Comm. on Ethics and Prof’l Responsibility, Informal Opinion 1384 (1977) (stressing that a lawyer should not discard or destroy property of the client or information that the client may foreseeably need). In responding to the current request for clarification, we apply the Opinion 692 definition of “property of the client” and conclude that in most cases, including those involving personal injury or malpractice claims, medical records, x-rays, expert reports, deposition transcripts, and answers to interrogatories do not constitute property of the client.  That does not mean, however, that there is no case in which such materials and documents could ultimately fall within the definition of property of the client.  It may well be that, depending on the nature of the matter or the representation itself, it would be foreseeable that the former client will need such documents in the future to protect an interest or defend a claim.  In such a case, the types of documents specifically referenced in the inquiry (medical records, x-rays, expert reports, deposition transcripts, and answers to interrogatories) could constitute “property of the client” and, as such, be subject to the retention requirement applicable to client property.  See Opinion 692 and below.  Practitioners will need to apply discretion to these matters on a case-by-case basis. (b) What Portion of the File Must be Retained for Seven Years Absent specific written instructions or an express agreement or other legal authority, such as a court order,  (1) property of the client must be returned, or retained and maintained indefinitely (see Opinion 692, finding thatR.P.C. 1.15(b) “implies that ‘property’ of the client may never be destroyed without the client’s permission or some legal authority such as a court order”); and  (2) the remainder of the file must be retained and maintained for seven years (see Opinion 692, concluding that a client can reasonably expect an attorney to have a file available for seven years after the conclusion of representation). At the end of the seven-year retention period, a lawyer has an obligation to examine the closed file to determine whether it contains property of the client.  If a file contains such property, the lawyer should take reasonable steps to notify the former client.  Reasonable steps include, but are not limited to, mailing a notice to the client’s last known address by regular or certified mail and waiting a reasonable period for a response.  Cf. D.C. Legal Ethics Comm., Opinion 283 (1998) (holding that an attorney must make a reasonable effort to reach the former client by sending a letter to the client’s last known address and waiting an appropriate period of time (perhaps six months)).[1] Some files may contain client property that has inherent value, such as bonds, stocks, or jewelry.  Where a file contains inherently valuable property and the client cannot be found at the end of the seven-year retention period, the lawyer should dispose of the property in accordance with New Jersey’s Uniform Unclaimed Property Act,N.J.S.A. §§ 46:30B-1 to -109. While the inquiry here at issue did not include a specific question on retention of criminal files, the Committee takes this opportunity to provide guidance to the criminal bar by noting that it will generally not be prudent to dispose of criminal files after seven years.  That is because criminal convictions can have significant consequences long after the final judgment, sentencing, and closure of the case.[2]  Thus, absent an express agreement, a lawyer should not discard or destroy files relating to criminal matters while the client is alive.[3]  Accord, State Bar of Cal. Standing Comm. on Prof’l Responsibility and Conduct, Opinion 2001-157 (2001) (holding that client files in criminal cases cannot be destroyed without the client’s authorization while the client is alive). Finally, we emphasize again that practitioners must use their judgment and apply discretion, and must consult substantive law requirements in particular practice areas to determine the appropriate retention period beyond the required seven years for files or portions of files in certain matters.  For example, where the matter involves a minor, materials in the file may affect the client’s rights well beyond the seven-year retention period.  See, for example, N.J.S.A. § 2A:14-21 (providing that the statute of limitations for claims brought by minors tolls until the minor reaches majority).  Thus, a lawyer may need to retain file records relating to the representation of a minor until the minor reaches majority and thereafter until the statute of limitations runs.  Cf. D.C. Legal Ethics Comm., Opinion 283, fn. 10 (1998) (explaining that files relating to matters involving a minor may need to be kept beyond the minimum five-year retention period established in that jurisdiction).  See also N.J.S.A. § 2A:14-7 (providing for a twenty year statute of limitations for actions relating to real estate). Other extended retention requirements may apply by operation of state and federal laws that require particular information to be retained for more than seven years.  While these requirements may not specifically apply to attorneys, to the extent an attorney has these types of records in a client file, and absent an agreement with the client, the attorney may be required to maintain them for the period specified in the applicable law.  See, for example, 29 U.S.C. § 1059 (a)(1) (ERISA) (requiring indefinite retention of documents essential to the determination of benefits payable to employees);  29 C.F.R. § 1910.1020(d) (OSHA) (requiring that medical records pertaining to an employee’s exposure to toxic or hazardous substances in the workplace be retained for the duration of employment plus thirty years). Before destruction, whether based on the client’s consent or at the end of the seven-year retention period, the attorney should carefully review the file’s contents to make certain that documents that the lawyer is required by law to maintain or that the client may foreseeably need are not destroyed.  Once again, the Committee notes that counsel must exercise reasonable discretion in these matters, based upon the particular facts, and as may be required by applicable law. As Opinion 692 emphasized, when destroying client files, the manner in which they are destroyed must conform to the confidentiality requirements of RPC 1.6.  See Opinion 692 (stressing that “simply placing the files in the trash would not suffice”).  Accordingly, a lawyer must take appropriate measures to ensure that confidential and privileged information remains protected from improper disclosure. (c) Agreements to Destroy Client Property The inquirer has asked for clarification whether there must be separate agreements concerning destruction of property of the client in less than seven years.  Specifically, the inquirer seeks guidance whether, in the case where there is a general agreement with the client on the destruction of the entire file (in a retainer agreement or otherwise), a specific agreement is required for the destruction of “property of the client” that may be contained in the file. As Opinion 692 makes clear, an agreement to destroy property of the client should be executed only after the property is in the attorney’s possession, and should specifically describe the property intended to be destroyed or otherwise disposed of.  See Opinion 692 (holding that if a general retention policy calling for the destruction of a closed file “is intended to be made applicable to ‘client property’ . . . the agreement should be executed only after the property is in the attorney’s possession”).  Therefore, unless the attorney is in possession of the client property before a retainer agreement is signed, generally an agreement to destroy a file contained in a retainer agreement is insufficient to permit destruction of client property. (d) Responsibility For Retention and Maintenance of Closed Client Files Under Certain Circumstances From time to time the Committee has been asked for guidance on the question of who has responsibility for the retention and maintenance of client files, including property of the client, in circumstances where a sole practitioner retires or dies, the attorney who worked on the matter leaves the firm, or when the firm dissolves.  The Committee takes this opportunity to provide guidance to the bar on this issue. Ordinarily, clients of a law firm employ the firm as an entity rather than employing a particular member of the firm.  See State v. Belluci, 81 N.J. 531, 541 (1980) (reasoning that the access to confidential information among members of a firm and the shared economic interest of the entire firm support “treating a partnership as one attorney”); Staron v. Weinstein, 305 N.J. Super. 236, 242 (App. Div. 1997) (“When a client retains a lawyer [associated with a law firm] the lawyer’s firm assumes the authority and responsibility of representing that client, unless the circumstances indicate otherwise . . . .”) (citing Restatement (Third) of Law Governing Lawyers § 26, cmt. h (Proposed Final Draft No. 1, 1996)).  Accordingly, under RPC 1.16, a law firm has an ethical obligation to protect the interests of former clients.  Where a client employs a firm, it is the firm that has the obligation to comply with the procedures for disposition of client files set forth in Opinion 692 as clarified in this opinion.  SeeN.Y. State Bar Assoc. Comm. Prof’l Ethics, Opinion 623 (1991) (holding that a law firm, and not just the member of the firm who actively represented a client, has a professional obligation to maintain that client’s closed files).  Likewise, in the event that a firm dissolves, the former partners or members of the firm have a professional and ethical obligation to make arrangements for the disposition of client property in a manner consistent with this opinion and Opinion 692.  This requirement conforms with the ethical obligations imposed on many of New Jersey’s licensed professionals to establish procedures for retrieval of records following the cessation of their practices.  See, for example, N.J.A.C. 13:30-8.7(f) (Dentists); N.J.A.C. 13:35-6.5(h) (Physicians); N.J.A.C. 13:42-8.1(h) (Psychologists); N.J.A.C. 13:44E-2.2(g) (Chiropractors). Under RPC 1.3, a sole practitioner has an ethical duty to plan for disposition of files in the event of his/her death or retirement.  See Model Rules of Prof’l Conduct R. 1.3 cmt. 5 (amended 2002) (“To prevent neglect of client matters in the event of a sole practitioner’s death or disability, the duty of diligence may require that each practitioner prepare a plan, in conformity with applicable rules, that designates another competent lawyer to review files, notify each client of the lawyer’s death or disability, and determine whether there is a need for immediate protective action.”); ABA Comm. on Ethics and Professional Responsibility, Formal Opinion 92-369 (1992) (noting that the Model Rules on diligence and competence require a sole practitioner to plan for death); Fl. State Bar Assoc. Comm. of Prof’l Ethics, Opinion 81-8 (1981) (holding that when planning for death, a lawyer must make a diligent effort to contact all clients, review each file for documents that must be safeguarded, and index such documents before putting them in storage or turning them over to the attorney who assumes control of the practice).  RPC 1.3 specifically requires a lawyer to act “with reasonable diligence and promptness in representing a client.”  We conclude that “reasonable diligence” requires a sole practitioner to make arrangements for disposition of client files in the event of death or retirement.  This is an obligation which all law firms and sole practitioners must prepare for now. When a sole practitioner has not arranged for file disposition in the event of death or disability, New Jersey Court Rule 1:20-19 provides for the disposition of the practice, including client files[4].  Pursuant to Rule 1:20-19, an interested party may petition the Assignment Judge in the vicinage where the attorney maintained a practice to appoint a member of the bar to perform an inventory of the practitioner’s files and take actions necessary for the protection of the attorney’s clients.  N.J. Ct. R. 1:20-19(a).  Cf. Model Rules for Lawyer Disciplinary Enforcement, 28 (1989).  When dealing with retention and disposition of client files and client property, the appointed attorney must comply with the seven-year time period established in Opinion 692 and clarified in this opinion.  See ABA Comm. on Ethics and Professional Responsibility, Formal Opinion 92-369 (1992) (concluding that ABA Informal Opinion 1384 regarding the duty to preserve client files applies to lawyers who assume responsibility for a deceased practitioner’s clients). (e) As Between the Insurer and the Insured, who is the Client for Purposes of Complying with the Requirements set forth in Opinion 692, as Clarified Herein Concerns about the disposition of closed client files multiply in the conflict-ridden tripartite relationship among a law firm, an insurance company, and the insured party.  Based on RPC 1.6 and 1.8 and legal precedent, the Committee reaffirms that the insured, and not the insurer, is the client for the purposes addressed in this opinion and in Opinion 692.  To the extent that Opinion 542 conflicts with this holding, we now reject it. In Opinion 542, we addressed whether an attorney for an insured breached his duty of confidentiality by delivering closed files to the insurer without retaining copies.  N.J. Advisory Comm. on Prof’l Ethics, Opinion 542 (1984).  We explained that the insured and insurer could agree to the disposition of claims files.  However, we emphasized that the attorney must return all materials unrelated to the claims at issue to the insured, unless the insured authorized other means of disposal.  Although we held that the attorney’s procedure described in that inquiry for disposing of claims files was proper, we limited our response to files that contained no confidences of the insured.  Opinion 542 did not address whether the attorney’s duty to safeguard client property limited the attorney’s ability to transfer the entire claims file to the insurer.  However, to the extent that Opinion 542 does permit destruction of a file based on a contract between the insured and the insurance company, it is rejected. Although this is an issue of first impression in New Jersey, prior decisions regarding the relationship between the attorney, an insurance carrier, and the insured support a finding that the file and all “client property” belong to the insured.[5]  In New Jersey, courts have concluded that an attorney’s primary duty is to the insured.  Prevratil v. Mohr, 145 N.J. 180, 194 (1996); Lieberman v. Employers Ins. of Wausau, 84 N.J. 325, 338 (1980) (emphasizing that the relationship between defense counsel and the insured should be treated as if the insured had hired and paid for the attorney’s services); Montanez v. Irizzary-Rodriquez, 273 N.J. Super. 276, 286 (App. Div. 1994) (concluding that defense counsel cannot ethically attack the credibility of the insured given the undivided loyalty that the attorney owes to the insured); Longo v. Am. Policyholders’ Ins. Co., 181 N.J. Super. 87, 92 (App. Div. 1981) (holding that an attorney has an ethical obligation to represent the insured with undivided loyalty); N.J. Advisory Comm. on Prof’l Ethics, Opinion 542 (1984) (“We first observe that in the situation where an attorney is employed by an insurance company to represent the interests of the insured party to an action, that attorney’s client is the insured.”).  Similarly, the New Jersey Supreme Court has held that an attorney owes undivided loyalty to the insured.  Lieberman, supra, 84 N.J. at 338-39.  Based on the existence of an attorney-client relationship between the attorney and the insured, the Lieberman Court stressed that “there is no diminishment of ethical obligations and standard of care applicable to insurance defense counsel.”  Id. Accordingly, as a baseline, the attorney owes all ethical obligations, including the obligations to safeguard client property and protect client interests, to the insured and not the insurer. RPC 1.8, Conflict of Interest, makes clear that an attorney has an ethical obligation to preserve the insured’s confidentiality.  Pursuant to RPC 1.8, an attorney can only accept compensation from a third party if “there is no interference with the lawyer’s independence of judgment or with the lawyer-client relationship,” and the client’s confidential information is protected.  See also Restatement of the Law (Third) Governing Lawyers § 134, ill. e (2000) (directing an attorney to maintain the confidentiality of the insured).  Documents that an insured delivers to the attorney in the course of representation, such as medical records or financial statements, constitute “property of the client” as that term is defined in Opinion 692 and clarified in this Opinion.  These materials may contain client confidences that, under RPC 1.8, cannot be disclosed to the insurance carrier without the informed consent of the insured.  Therefore, concerns over maintaining client confidences support a finding that the insurer cannot control the disposition of closed client files. Because the attorney’s employment by the insurer does not limit the attorney’s ethical obligations to the insured, the Committee holds that materials contained in a claims file that clearly fall within the meaning of “property of the client” must be disposed of in accordance with the insured’s instructions, or maintained indefinitely underRPC 1.15(b).  The insured may consent to the destruction or retention of a claims file by the insurer, but such consent must be fully informed.  Therefore, the insured must be aware of the materials contained in the file at the time the insured gives consent.  See In re Rules of Prof’l Conduct and Insurer Imposed Billing Rules and Procedures, 299 Mont. 321, 346-47 (2000) (“[F]or an insured to make fully informed consent to disclosure of detailed professional billing statements, the consent must be contemporaneous with the facts and the circumstances of which the insured should be aware.”).  Accordingly, in most cases, an insured may not consent to disposal of client property by way of a provision to that effect in a liability policy executed before any claims materialize. In sum, legal precedent in this State makes clear that the insured is the client of the attorney, even where the insurance carrier hires and pays for the attorney’s services.  All resulting ethical obligations, including the obligation to retain closed client files and property of the client, apply to the insured.  Thus, the Committee concludes that, where a claims file contains materials delivered by the insured to the attorney or prepared or obtained for the insured in the course of representation, the attorney must obtain the insured’s instructions or consent regarding the disposition of the property in accordance with Opinion 692 and this opinion. * * * [1] The New Jersey Administrative Code provisions regulating other licensed professionals provide guidance on the scope of “reasonable efforts.”  Pursuant to the Code, when preparing to retire or terminate their practices, psychologists, chiropractors, dentists, and physicians must establish procedures by which patients may obtain treatment records.  See N.J.A.C. 13:30-8.7(h) (Dentists); N.J.A.C. 13:35-6.5(h) (Physicians); N.J.A.C. 13:42-8.1(h) (Psychologists); N.J.A.C. 13:44E-2.2(g) (Chiropractors).  These procedures and a notice of cessation of the practice must be published in “a newspaper of general circulation in the geographic location of the licensee’s practice, at least once each month for the first three months after the cessation.”  Id.  3 [2] See, for example, N.J.S.A. § 2C:7-2 (providing that a registered sex offender who has not committed an offense within fifteen years after conviction or release, whichever is later, can apply for termination of the registration obligation); N.J.S.A. § 2C:43-7.1 (authorizing extended sentencing for repeat violent offenders). [3]  The New Jersey Public Defender maintains files for 50 years pursuant to a departmental policy that was approved by the State Records Committee pursuant to N.J.S.A. § 47:3-20 in 1983. [4] The Court Rule alternative is unlikely to be as practical and effective as advance planning by the responsible firm or practitioner. [5] Neither the courts nor the legislature in this State has addressed whether the insured and the insurer are, in some circumstances, both clients of the attorney.  See Paradigm Ins. Co. v. Langerman Law Offices, 200 Ariz. 146, 154 (2001) (holding that “when an insurer assigns an attorney to represent an insured, the lawyer has a duty to the insurer arising from the understanding that the lawyer’s services are ordinarily intended to benefit both insurer and insured when their interests coincide”).  Because we find that this is a question of substantive law, we do not address it.  See N.J. Ct. R. 1:19-2 (granting the Committee jurisdiction over inquiries concerning the proper conduct for members of the New Jersey bar).  However, if, in the future, the courts or legislature determine that an attorney owes a duty of loyalty to both the insurer and the insured, the Committee will have to revisit the question of retention and destruction of  the insured client’s files and property.