Accidents happen. However, when an unforeseen disaster or accident results in the destruction of client files, an attorney may have an ethical obligation to notify current and former clients according to the Association of the Bar of the City of New York Committee on Professional Ethics.
In September 2015, the Committee opined that “[w]here the destruction of a client file compromises the lawyer’s ability to provide competent and diligent representation to the client, the lawyer must take reasonable steps to reconstruct the file sufficiently to allow the lawyer to provide such competent and diligent representation or must notify the client if he is unable to do so.” Additionally, the lawyer must “notify the current or former client if an accident or disaster compromises the security of confidential information.”
According to the committee, “[t]here is no bright line rule to determine whether the inadvertent destruction of a document triggers a duty to notify the client or former client.” The committee grouped client documents into three categories of importance. For “Category 1” documents (i.e., documents with intrinsic value, such as wills, deeds and negotiable instruments, that directly affect property rights), the lawyer has an affirmative obligation to take reasonable steps to notify the client or former client, unless there is an agreement to the contrary. For “Category 3” documents (i.e., documents that have no useful purpose in serving the client’s present needs for legal advice), the lawyer has no affirmative duty to notify their client of the inadvertent destruction, unless the lawyer and client agreed otherwise. However, if the client asks about the files, the lawyer has a duty under New York Rule of Professional Conduct 1.4 (communication) to inform the client.
As for “Category 2” documents (i.e., documents that may still be necessary or useful), the lawyer must make a case-by-case analysis. If the client’s matter is still active, the lawyer must take reasonable steps to notify the client. However, if the client’s matter is closed, the lawyer must evaluate whether the “client foreseeably may need” the documents. If a document relates to a fully resolved matter, the lawyer need not notify the client of its destruction. Nevertheless, if there are open issues, the lawyer should take reasonable steps to alert the client of the file’s loss. Other factors to consider for “Category 2” documents include: the amount of time that has passed since the matter was closed; whether the firm previously gave the client reasonable notice that the files were available to be collected or delivered and whether the client responded to such notice; whether the firm delivered copies of the files to the client at the conclusion of the matter or the client received copies of the files while the matter was ongoing; whether the firm has previously made unsuccessful attempts to contact the client; and whether the contents of the file can be reconstructed from other sources.
To read the opinion, click here.
