Ethics Hotline & Opinions

ETHICS DOCKET NO. 2005-03

MARYLAND STATE BAR ASSOCIATION, INC.

COMMITTEE ON ETHICS

ETHICS DOCKET NO. 2005-03

Storing closed files in a paperless storage system


You write to ask us to determine the permissibility of a paperless file storage system for completed legal work. You plan to institute a process of “scanning the files and saving the contents in a server with regular backups, saving on discs, and the normal reasonable precautions.” You then plan to discard original documents and original signatures after three (3) years. You express concern that this process may not satisfy the requirement to maintain files for at least three (3) years. You opine there is “no doubt that using a paperless storage system is satisfactory for files that are more than three (3) years old, . . ..”

We refer you to Ethics Docket 2004-02 in which we set out the standards promulgated by the American Bar Association. 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 records).
     
  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 a 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.

Initially, we suggest you carefully review the standards set out above when making a judgment of which documents you may discard and when you may discard them.

We also point out that in view of the American Bar Association Standards, we are not as confident as you that the use of a paperless storage system for all files that are more than three (3) years old would be permissible.

We also refer you to Ethics Docket 2005-01, Maryland Rule 1.15 and Title 21 of the Annotated Code of Maryland, Commercial Law Article.

REFERENCES:
Ethics Docket 2004-02, 2005-01
Rule 1.15
Md. Code Ann., Comm. Law § 21-101, et. seq. (2004)

DISCLAIMER: Opinions of the Maryland State Bar Association (MSBA) Ethics Committee are an uncompensated service of the MSBA. This Committee’s opinions are not binding on the Maryland Court of Appeals, Maryland Attorney Grievance Commission, MSBA or this Committee. The reader is advised that subsequent judicial opinions, revisions to the rules of professional conduct, and future opinions of this Committee may render the Opinions stated herein outdated. As such, the Committee’s opinions are advisory only and neither the Committee nor the MSBA assumes any liability whatsoever with respect thereto. Accordingly, reliance upon the opinions of this Committee is solely at the risk of the user.