In re Ark. R. Prof'l Conduct 1.19 , 2016 Ark. 468 ( 2016 )

Cite as 2016 Ark. 468SUPREME COURT OF ARKANSAS
Opinion Delivered: December 15, 2016
IN RE RULE 1.19- ARKANSAS RULES
OF PROFESSIONAL CONDUCT
PER CURIAM
The Supreme Court Committee on Professional Conduct proposed a new rule to
address issues related to the maintenance of a client’s file and rights and obligations to
materials contained in the file. By per curiam opinion dated June 2, 2016, we published
the proposed rule for written comments due to the court by September 1, 2016. In re
Proposed Rule 1.19- Arkansas Rules of Prof’l Conduct, 2016 Ark. 240 (per curiam).
After reviewing and taking into consideration the comments submitted, we now
adopt the proposed rule with some minor changes, effective on January 1, 2017. The new
rule is published below.
Arkansas Rules of Professional Conduct
Rule 1.19. Client Files - Definition, Retention & Destruction.
(a) Client file - Definition and duty to provide copies of client-file documents to the client. The use of
the term “client” refers to both current and former clients.
Cite as 2016 Ark. 468(1) For purposes of these rules, the client file shall consist of any writings or property
provided by the client to the lawyer and any documents, in paper or electronic format, that
are the product of the lawyer’s representation, including pleadings, correspondence, and
other documents prepared or received by the lawyer in furtherance of the representation.
Documents that have not been filed with a tribunal, delivered or served, or other documents
drafted but unexecuted or undelivered that the client has explicitly paid for the drafting,
creation, or obtaining thereof, including such items as transcripts, depositions, medical
records, and reports of experts, shall be provided to the client as part of the file.
(2) The following records are not included in the client file, even if they are
maintained by the lawyer in association with the representation and the client file, and such
records are not ones to which the client is entitled to review or receive a copy:
(A) The lawyer’s work product, which includes the documents the lawyer
used to reach an end product of the lawyer’s representation, the lawyer’s notes, and
preliminary drafts of pleadings and legal instruments;
(B) Internal memoranda prepared by or for the lawyer;
(C) Legal research materials prepared by or for the lawyer and factual research
materials, including investigative reports prepared by or for the lawyer for use in the
representation, unless the material has been specifically paid for by the client or procured by
the lawyer for the client’s use;
(D) Documents such as internal conflict checks, firm assignments, notes
regarding any ethics consultation, or records that might reveal the confidences of other
clients.
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Cite as 2016 Ark. 468(E) Items not included in the list of excluded items shall be considered to be
part of the client file to which the client is entitled.
(3) Upon the client’s written request in any format, the lawyer shall surrender the
client’s original file or a copy of the file, in paper or electronic format, to the client. Upon
written authorization of the client, the lawyer shall surrender such file to the client’s new
lawyer. The lawyer may deliver a statement for costs of production to the client but may
not withhold delivery of the client file pending payment.
(4) The cost of copying the file shall be the responsibility of the client. If the lawyer
has in his or her possession client funds to be reimbursed for such copying cost, the lawyer
may be reimbursed for such cost from the client funds held by the lawyer. A lawyer who
has previously provided the client a copy of any part of the client file may charge the client
for additional copies of the same documents. The client shall be responsible for the
reasonable costs incurred in delivery, by mail or commercial-delivery service, of the client-
file materials outside the lawyer’s office. After delivery of the client file to the client or the
client’s new lawyer, the lawyer may deliver a statement of costs of copying of the file to the
client but may not withhold delivery of the client file pending payment.
(5) If the lawyer provides the original client file to the client, the lawyer may, at no
cost to the client, retain copies of all documents within the lawyer’s file for the lawyer’s
purposes.
(6) The terms and conditions of the allocation of copying and delivery costs involved
in the client file may be fixed by a written agreement between the client and the lawyer at
the inception of the representation.
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Cite as 2016 Ark. 468(b) Client file retention and destruction.
(1) A lawyer shall take reasonable steps to maintain the client’s file in paper or
electronic format for five (5) years after the conclusion of the representation in a matter.
(2) At any time following the expiration of five (5) years following the conclusion of
the representation in a matter, a lawyer may destroy the client’s files related to the matter.
(3) The providing to the client of the lawyer’s file-retention-and-destruction policy
in any writing, including an engagement letter or agreement or termination of
representation letter, shall satisfy the notice requirement of this rule.
(4) Notwithstanding subparagraphs (1), (2), and (3), a lawyer in a criminal matter
shall maintain the client’s file for the life of the client if the matter resulted in a conviction,
by plea or trial, and sentence of death, natural life, or life without parole, unless the client’s
file is turned over to some appropriate, permanent central-file repository that maintains such
criminal case files in compliance with this rule.
(5) This rule does not supersede or limit a lawyer’s obligations to retain or destroy
contents of a client’s file as otherwise imposed by law, court order, or rules of a tribunal.
Comments:
[1] The Court has adopted a rule regarding the client file that generally follows the
“end product” approach as discussed in Travis v. Committee on Professional Conduct, 2009 Ark.
188. In this new rule, the Court has endeavored to balance the needs and interests of the
client with the obligations and burdens that may be placed on the lawyer and attempted to
give basic guidance that will be used to allow the client and the lawyer to resolve any issues
or disputes that may arise in these areas without resort to the courts or other agencies. This
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Cite as 2016 Ark. 468rule does not attempt to address all scenarios that may arise, especially in the area of whether
the client has paid any, some, or all fees and costs incurred or charged by the lawyer,
recognizing the differences between engagements where the fee is contingent, hourly, fixed,
or otherwise based.
[2] At the beginning of representation and in writing, the lawyer should inform the
client of the client’s rights regarding the client file, including any potential charges that may
be associated with the lawyer’s providing the client with a copy of the client file or duplicate
copies of client file materials.
[3] This rule is not intended to impose an obligation on a lawyer to preserve
documents that the lawyer would not normally preserve, such as multiple copies or drafts
of the same document. A client’s file, within the meaning of this rule, consists of those
things, such as papers, writings, electronic data, and property relating to the representation.
Although the client file includes the client’s “property,” the lawyer’s obligations with respect
to some client “property” items are distinct and governed by Arkansas Rule of Professional
Conduct 1.15.
[4] The lawyer may comply with this rule by maintaining the client’s files in, or
converting the files to, electronic form, provided the lawyer is capable of producing a paper
version if necessary. In certain criminal matters, the lawyer is required to maintain the
client’s file for an extended period of time, and maintaining the file in its original format
may become impracticable.
[5] This rule does not affect the lawyer’s obligation under Rule 1.16 of the Arkansas
Rules of Professional Conduct to surrender the paper and the property to which the client
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Cite as 2016 Ark. 468is entitled at the termination of representation or any obligation under Rule 19 of the
Arkansas Rules of Appellate Procedure–Criminal to provide existing copies of appellate
briefs, trial records, or transcripts to convicted offenders.
[6] These rules do not supersede obligations imposed by other laws, court orders,
tribunal or jurisdictional rules. These rules do not supersede specific retention requirements
imposed by other rules or regulations, such as rules related to non-probated wills, certain
trusts, and requirements to retain original signed documents for a period of time. If a
document is subject to more than one retention requirement, the lawyer should maintain
the document for the longest applicable period.
[7] Generally, this rule does not apply to lawyers employed by a private corporation
or other entity as in-house counsel. Those lawyers are considered employees of the
corporation or entity, and the client’s files are considered to be in the possession of the client
and not the lawyer. In regard to lawyers employed by public defenders or legal-service
organizations or governmental agencies to represent third parties under circumstances where
the third-party client’s files are considered to be files and records of the organization or
agency, the lawyer must take reasonable measures to ensure that the client’s files are
maintained by the organization or agency in accordance with this rule.
[8] Lawyers are reminded that there is no statute or rule of limitation relating to when
an attorney-discipline complaint or charge may be filed or time-barred, a factor that should
be considered in a lawyer’s determination of an appropriate file-retention-and-destruction
period and policy.
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