New York attorneys have a duty to preserve documents related to current and former clients. Though this duty to preserve client files does not extend indefinitely, there is no specific guidance on how long client files must be preserved. Out of an abundance of caution, many New York attorneys are inclined to keep old client files in storage. But what happens when client files are destroyed by a disaster or accident? Does the attorney have an ethical obligation to notify his/her current or former client when client files have been inadvertently destroyed?
The New York City Bar Association's Committee on Professional Ethics recently issued an ethics opinion concluding an attorney may have a duty to notify both a current and former client when his/her/its file has been inadvertently destroyed by disaster or accident. The Committee on Professional Ethics did not announce a bright-line rule for when an attorney has a duty to contact a current or former client, but rather encouraged attorneys to make case-by-case determinations as to whether a current or former client must be notified about the inadvertent destruction of his/her/its file. In making a case-by-case determination, the attorney should consider factors such as whether the client matter is ongoing, relevance of the documents to the ongoing matter, ability to reproduce the documents, and nature and age of the documents destroyed.
The Committee on Professional Ethics applied the three-tier framework used to categorize client files when assessing whether an attorney may destroy client files upon conclusion of representation to provide guidance as to when a current or former client should be notified about the inadvertent destruction of his/her/its file. Category 1 documents are those of “'intrinsic value or those that directly affect property rights' [such as] wills, deeds, and negotiable instruments”. New York City Bar Association Formal Opinion 2015-6 (2015) citing New York City Bar Association Formal Opinion 2010-1 (2010). When Category 1 documents are inadvertently destroyed, the attorney “has an affirmative obligation to take reasonable steps to notify the client or former client[.]”Id.
Category 2 documents are those the attorney “'knows or should know may still be necessary or useful to the client, perhaps in the assertion of a defense in the matter for which the applicable limitations period has not expired.'” Id. citing New York City Bar Association Formal Opinion 2010-1 (2010). Category 2 documents may encompass both active and inactive client files. When the matter remains active, the attorney “must take reasonable steps to notify the client if Category 2 documents are inadvertently destroyed.” Id. However, if the matter is no longer active, the attorney must make a case-by-case assessment to determine whether the client may foreseeably need the inadvertently destroyed documents in the future. Id. The attorney has no obligation to notify the client of the inadvertent destruction of documents if he/she “reasonably concludes that the 'document relates solely to a claim fully and finally resolved through litigation'[.]” Id. citing New York City Bar Association Formal Opinion 2010-1 (2010). However, if the matter has not been fully or finally resolved or related issues exist, the attorney “should take reasonable steps to notify the client that the file was destroyed.” Id. Factors relevant to inquiry as to whether the client should be notified about the inadvertent destruction of Category 2 documents include (1) the passage of time since the matter was closed; (2) whether the client was provided notice in the past that the file was available to be collected or delivered and the client's response to said notice; (3) whether the client was previously provided copies of the file during or at the conclusion of representation; (4) whether the attorney previously made fruitless attempts to contact the client; and (5) whether the file can be reconstructed from other sources such as the court, government agencies, and co-counsel or opposing counsel.
Finally, Category 3 documents are those of “relatively little importance that would 'furnish no useful purpose in serving the client's present needs for legal services.'” Id. citing New York City Bar Association Formal Opinion 2010-1 (2010) (internal citations omitted). There is no affirmative duty to notify a current or former client of the inadvertent destruction of Category 3 documents. The attorney is nonetheless obligated to comply with a current or former client's reasonable request for information about his/her/its client file. As such, the attorney must promptly inform the current or former client of the inadvertent destruction of the documents if said client makes an inquiry as about the file.