Question: Attorney proposes to enter into a contract with a shredding company for regular collection and disposal of closed client files. Attorney is concerned about preserving confidentiality in doing so. May Attorney use an outside shredding company to dispose of closed files?

Answer: Provided Attorney has held the client files for the required period of time pursuant to Rule 4-1.22 such that the files are deemed abandoned by the clients, items of intrinsic value have been removed, and Attorney does not know or reasonably should know of the pendency of a malpractice claim, criminal or other governmental investigation, complaint under Rule 5, or other litigation related to the representation, Attorney may engage a shredding company vendor to dispose of closed files consistent with Rule 4-5.3. Rule 4-1.22 states that “[t]he file shall be destroyed in a manner than preserves confidentiality.” Attorney should select a vendor that will destroy the file in a manner to ensure confidentiality. Attorney should select a vendor in accordance with Attorney’s supervisory responsibilities pursuant to Rule 4-5.3, as Attorney is required to make reasonable efforts to ensure that the vendor’s conduct is compatible with the professional obligations of Attorney, in this case making sure that the shredding company is able to preserve confidentiality of the files in the destruction process in accordance with Attorney’s responsibilities under Rules 4-1.22 and 4-1.6. Rule 4-5.3(b). Rule 4-5.3, Comment [3] provides guidance on use of vendors such as a shredding company and states: “When using such services outside the firm, a lawyer must make reasonable efforts to ensure that the services are provided in a manner that is compatible with the lawyer’s professional obligations. The extent of this obligation will depend upon the circumstances, including the education, experience and reputation of the nonlawyer; the nature of the services involved; the terms of any arrangements concerning the protection of client information; and the legal and ethical environments of the jurisdictions in which the services will be performed, particularly with regard to confidentiality.…When retaining or directing a nonlawyer outside the firm, a lawyer should communicate directions appropriate under the circumstances to give reasonable assurance that the nonlawyers conduct is compatible with the professional obligations of the lawyer.” Attorney may consider use of a confidentiality agreement to assist with ensuring those professional obligations are met. See Informal Opinions 20070008; 20050068. Further, Attorney is responsible for the conduct of the vendor that would be a violation of the Rules if engaged in by Attorney if Attorney orders or ratifies the conduct with knowledge of the specific conduct. Rule 4-5.3(c)(1). Similarly, Attorney is responsible for the conduct of the outside vendor related to the files subject to agreement with Attorney that would be a violation of the Rules if engaged in by Attorney if Attorney is a partner, has comparable managerial authority, or direct supervisory authority, and knows of such conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial measures. Rule 4-5.3(c)(2). 

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.

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