ETHICS OPINION 624-1974 CONFIDENCES AND SECRETS: MICROFILMING CLOSED FILES. PRESERVING CLIENT’S PROPERTY.

NUMBER 624

QUESTION.

 

A law firm proposes to have its files in closed matters microfilmed by a professional microfilming service at the latter’s premises, the processed films to be returned to the law firm, After endeavoring to ascertain from clients if they desire to receive the original files (other than the lawyers’ notes and correspondence) the lawyers would destroy the files which clients did not wish to receive, and those relating to clients who cannot be located. Original documents, such as Wills, and other papers which the law firm concludes should be preserved, would be retained by the firm, The law firm asks if this procedure would be proper and, if deemed improper, what rule governs the preservation of old files and records?

 

ANSWER.

 

The Disciplinary Rule involved in this question is DR 4-101, dealing with the “Preservation of Confidences and Secrets of a Client”. The Rule prohibits a lawyer from knowingly revealing such information, except with client’s consent or under certain conditions stated in the Rule. The obligation continues after the termination of the lawyer’s employment. EC 4-6. However, DR 4-101(D) impliedly permits a lawyer to disclose such information to his employees, associates, “and others whose services are utilized by him”, provided he exercises reasonable care to prevent them from revealing the information. EC 4-3 permits a lawyer, in the absence of a contrary direction from his client, to give limited information from his files to an outside agency “necessary for statistical, bookkeeping, accounting, data processing, banking printing or other legitimate purposes . . . .” (underscoring added), provided he exercises due care in the selection of the agency and warns the agency that the information must be kept confidential.

 

If printing is permissible, it is logical to extend such permission to microfilming, Xeroxing or other forms of duplication.

 

Accordingly, if a client can be located, the law firm should seek client’s approval before microfilming client’s file, and should obtain client’s instructions with respect to the disposition of original documents. If client directs that documents not be microfilmed, the law firm may, under DR 4-101(D), cause such papers as it deems necessary or desirable to preserve for its records to be copied by its employees.

 

If a client cannot be located, and the law firm has no reason to believe that its client would otherwise direct, it may microfilm the file, but should exercise great care to preserve original documents which may have any possible foreseeable use, Even if no such use is apparent, the first should satisfy itself that microfilmed copies may be introduced into evidence or otherwise used in place of the originals if the need therefor should unexpectedly arise.

 

March 14, 1974