Question: Attorney maintains original closed client files in paper format at a local storage facility. Some of those files may have contained items of intrinsic value. Those paper files were severely damaged in a recent natural disaster that resulted in record flooding in the area where the storage unit is located. Files have been submerged in flood waters and are rotting and molding such that the files cannot be salvaged. Attorney does not maintain electronic copies of the closed client files that were in storage. Attorney asked what steps need to be taken under the Rules of Professional Conduct.

Answer: Attorney has an obligation to maintain client files, even those that are closed, in accordance with Rule 4-1.22, as client owns the original file, cover-to-cover, as detailed in Formal Opinion 115, as amended. Attorney must identify which closed files were in the storage facility and notify the clients or former clients as to the destruction of the original file since Attorney is required to maintain those files for the requisite period of time. See Rules 4-1.22 and 4-1.4. Attorney should assist clients or former clients to the extent reasonably practicable. See Rule 4-1.16(d). Since these original files have been lost, as well as items of intrinsic value, Attorney should consider consulting with Attorney’s malpractice insurance provider or private legal counsel for additional guidance. Although the files are unable to be salvaged, they still must be disposed of in a manner that preserves confidentiality in accordance with Rule 4-1.22. Attorney may need to seek the assistance of a professional in disaster recovery to dispose of the damaged client files appropriately and ethically in accordance with Rules 4-1.6 and 4-5.3. See Informal Opinion 2021-03. While Rule 4-1.22 does not specify in what format Attorney must store client files (i.e., paper or electronic), it provides that such files, “except for items of intrinsic value, may be maintained by electronic, photographic, or other media provided that printed copies can be produced. These records shall be readily accessible to the lawyer.” In the future, Attorney may wish to consider implementing redundancy of client files to prevent such a loss, as well as additional security measures over items of intrinsic value. See also Rule 4-1.6 (a) and (c), Comments [15] and [16], Formal Opinion 127, and Informal Opinions 2020-09 and 2018-09.

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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