QUESTION: May Attorney comply with a protective order or participate in a settlement agreement requiring return or destruction of documents produced during discovery?

ANSWER: Documents in Attorney’s possession acquired during discovery are part of the client file. The file belongs to the client, with limited exception. Formal Opinion 115, as amended. Upon termination of the representation, Attorney is obligated to surrender papers and property “to which the client is entitled,” but may “retain papers and property to the extent permitted by other law.” Rule 4-1.16(d). Rule 4-1.15(d) requires Attorney to deliver promptly to the client any property that the client is entitled to receive, “except as … otherwise permitted by law or by agreement with the client.” Rule 4-1.22, Retaining Client Files, permits a lawyer to destroy a client file, or portions of the file, prior to the expiration of the six-year or ten-year default retention period, but only if the client grants informed consent, confirmed in writing; the items are not of intrinsic value; and none of the conditions in paragraphs (a) through (d) of Rule 4-1.22 exist. See Rule 4-1.0(e) (defining “informed consent”) and Rule 4-1.0(b) (defining “confirmed in writing”).
Protective Orders: In the event a client refuses to grant informed consent, confirmed in writing, to Attorney’s handling of file documents in accordance with a protective order, Attorney should seek to modify the order if Attorney can do so in compliance with Rule 4-3.1, Meritorious Claims and Contentions. If unsuccessful, Attorney is permitted by Rules 4-1.15(d) and 4-1.16(d) to comply with the terms of the protective order. See also Rule 4-3.4(c). Attorney must deliver to the client the remainder of the file or maintain the remainder of the file in accordance with Rule 4-1.22.
Settlements: A lawyer is to abide by a client’s decision whether to accept an offer of settlement, subject to the limits imposed by the lawyer’s professional obligations. Rule 4-1.2(a) and Comment [1]. A lawyer is prohibited from participating in a settlement agreement restricting the lawyer’s right to practice. Rule 4-5.6(b). If Attorney obtains the client’s informed consent, confirmed in writing, to destroy portions of the file, or obtains the client’s agreement to return to another party portions of the file, in accordance with the proposed settlement agreement, Attorney may participate in the settlement agreement on behalf of the client. See Rules 4-1.22 and 4-1.15(d).

Informal Opinions are ethics advisory opinions issued by the Office of Legal Ethics Counsel to members of the Bar about Rule 4 (Rules of Professional Conduct), Rule 5 (Complaints and Proceedings Thereon), and Rule 6 (Fees to Practice Law) pursuant to Missouri Supreme Court Rule 5.30(c). Written summaries of select Informal Opinions are published for informational purposes as determined by the Advisory Committee of the Supreme Court of Missouri pursuant to Rule 5.30(c). Informal opinion summaries are advisory in nature and are not binding. These opinions are published as an educational service and do not constitute legal advice.

To request an Informal Opinion, please visit: https://mo-legal-ethics.org/for lawyers/requesting-an-informal-advisory-opinion/.

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