Question: Attorney asks if e-mail correspondence with the client, and e-mail correspondence related to the representation of the client, are part of the client’s file?

Answer: Yes, both e-mail correspondence with the client, and email correspondence related to the representation of the client, are part of the client’s file. Formal Opinion 115, as amended, states that it is the opinion of the Advisory Committee “that the file belongs to the client, from cover to cover, except for those items contained within the file for which the attorney has borne out-of-pocket expenses such as, but not limited to, transcripts. The attorney may retain those items until such time as he is reimbursed for the out-of-pocket expense and then they must be immediately delivered to the client. Those items which have commonly been denominated as “work product” of the attorney actually belong to the client because those are the result of services for which the client contracted.” Based on the Formal Opinion 115, e-mails would be part of the client’s file and must be retained in accordance with Rule 4-1.22, File Retention. Similarly, text messages or other electronic communications would also be part of the client’s file.

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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