ETHICS DOCKET NO. 2004-02

MARYLAND STATE BAR ASSOCIATION, INC.

COMMITTEE ON ETHICS

ETHICS DOCKET NO. 2004-02

Disposition of closed or dormant files relating to representation by legal services entity going out of business; protection of clients’ interest in open cases where legal services entity is being closed

You are a lawyer for a group that has been in operation for three years providing free legal services to the community residents of the Hollins/Poppleton neighborhood. The clinic was funded by grant monies from the Sisters of Mercy and received additional funds from the Administrative Office of the Courts.

The legal issues mostly encompassed family law matters, although you did accept some landlord/tenant, education, and income maintenance cases. Funding will cease at the end of August of 2003.

You request a written opinion from the Ethics Committee on the proper course of action in disposing of current files, both open and closed, and the propriety of obtaining substitute counsel. There are approximately one hundred files involved. All but six have been closed. You have sent out letters to all former and current clients informing them that they may pick up their files before the end of August.

Specifically, you request guidance with respect to those files that are not picked up by the individual clients, what assistance is due to clients whose cases remain open and what you should do with regard to notifying the Court.

With regard to the files that are closed and are not picked up, we refer you to Ethics Docket 85-77 where we address the issue of the disposition of client files. We adopted standards promulgated by the American Bar Association and they are as follows:

1. Unless the client consents, a lawyer should not destroy or discard items that clearly or probably belong 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 record).
2. A lawyer should use care not to destroy or discard information that the lawyer knows or should know may still be necessary or useful in the assertion or defense of the client's position in a matter for which the applicable statutory limitations period has not expired.
3. A lawyer should use care not to destroy or discard information that the client may need, has not previously been given to the client, and which the client may reasonably expect will be preserved by the lawyer.
4. 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 content of other files, based upon their obvious relevance and materially to matters that can be expected to arise.
5. A lawyer should take special care to preserve, indefinitely, accurate and complete records of the lawyer's receipt and disbursement of trust funds.
6. In disposing of a file, a lawyer should protect the confidentiality of the contents.
7. A lawyer should not destroy or dispose of a file without screening it in order to determine that consideration has been given to the matters discussed above.
8. A lawyer should preserve, perhaps for an extended time an index of identification of the files that the lawyer has destroyed or disposed of.

See also Ethics Docket 93-31 and Ethics Docket 94-28.

With regard to open cases, we refer you to Rule 1.16, which permits you to withdraw from representing a client if it can be accomplished without material adverse effect on the interests of the client. It also requires you to take steps to the extent reasonably practicable to protect the client's interests, by giving reasonable notice to the client, allowing time for the employment of new counsel, and surrendering papers and property to which the client is entitled.

With regard to your notification to the Court, we refer you to Maryland Rule 2-132 of the Maryland Rules of Procedure.