The State Bar Association of North Dakota Spring 2014 Gavel Magazine | Page 14

DEPARTING CLIENT FILES:

PAPER OR ELECTRONIC?
if the electronic format provides a means of
recovery now and in the foreseeable future.2

JUSTICE DANIEL CROTHERS
North Dakota Supreme Court
Can a departing client demand an
electronic copy of his or her file? Can they
demand a paper file? If so, what ethical
obligation does a lawyer have to provide
client files in the requested format? While
North Dakota has not answered these
questions, a recent ethics opinion from
North Carolina furthered the discussion. 1

The Background

No citation is required for the proposition
that law firms use desktop and other
electronic devices to assist in delivery of legal
services. Utilization of these devices leads to
the inescapable conclusion that some or even
most client files will be stored electronically.

The North Dakota State Bar Ethics
Committee has not directly spoken on
the question whether and to what extent
client files can be maintained only in
electronic format. Other jurisdictions
generally conclude that files can be stored
electronically and that the corresponding
paper files can be destroyed if documents
of independent legal significance (wills
and deeds, for example) are retained and

14

THE GAVEL

North Dakota has answered a related
question. In 1999 the State Bar Association
of North Dakota said lawyers can ethically
store law firm records on servers accessible
over the internet (in the cloud—although
that term was not yet in use). 3 The 1999
opinion favorably cited a 1997 SBAND
Opinion stating lawyers could ethically
transmit routine attorney-client information
by email. Together, those opinions
reasonable should be read to implicitly
approve creation and storage of client
information in electronic format.

The Duty to Deliver Papers

The North Carolina opinion
first considers information
that must be provided to a
departing client.5 The opinion
cited the lawyer’s duty under
Rule 1.16(d) upon termination
“to ‘take steps to the extent
reasonably practicable to
protect a client’s interests, such
as...surrendering papers and
property to which the client
is entitled...’” 6 North Dakota
has the same rule and same
requirement as part of Rule
1.16(e). 7 Comment 10 to
our Rule 1.16(e) reminds us,
“With regard to the disposition
of the client’s files, papers or
property, the lawyer should
follow Rule 1.19.”8 While an
in depth discussion of Rule
1.19 is beyond the scope of this
short article, it is noteworthy
that “Rule [1.19] provides
guidance regarding the items to
which the client’s entitlement
extends, and speaks also to
other questions associated with
common lawyer/client issues

regarding files and papers.” 9

Delivery in the Requested Format

On the ultimate question of complying with
a client’s request for files in a paper or a
particular electronic format, North Carolina
anticipated two groups might exist. One
group of clients or successor counsel would
have the technical competence and financial
ability to receive electronic files without
difficulty or undue financial burden.10 The
other group would have limited technical or
financial means so that delivery of electronic
files would be burdensome. 11
Given the two groups, the North Carolina
Ethics Committee concluded, “There must