New York Bar on providing digital documents to clients
Like it or not, we now live - and practice law in - a digital world. For example, efiling is quickly becoming the norm in many jurisdictions. In fact, according the 2017 ABA Legal Technology Survey Report, for 55% of survey respondents, efiling is mandatory in state court. For another 47% it’s mandatory in local court. So, it’s not surprising that most lawyers have efiled documents, with 87% of solo attorneys reporting that they’ve done so, along with 96% of lawyers from firms firms with 10-49 attorneys, 96% of lawyers from firms of 2-9, and 94% of lawyers from firms of 100 or more.
Of course, a condition precedent to efiling is that legal documents be digitized. That’s one reason so many lawyers are moving to paperless law firms (or at the very least, firms with less paper). As a result of this transition, many law firms now store the majority of their documents in digital form only.
This increasing digitization of legal documents resulted in the presentation of a novel issue to the New York State Bar Association’s Committee on Professional Ethics in January. In Opinion 1142, the inquiring attorney asked whether lawyers are required to provide former clients with copies of their files in the format specified by said clients and, if the requested files are maintained in a digital format, can the law firm charge clients who request paper copies of their digital files for the cost of printing and mailing said documents?
In the case at hand, the inquiring attorney’s firm used a cloud-based client portal to provide clients with access to their documents. As explained in the opinion, “(w)hen a former client requests a copy of his or her file, the firm provides a link to a secure, password-protected cloud storage facility containing the client’s file.”
This inquiry arose because a former client of the firm’s, who happened to be incarcerated, requested that a paper copy of his file be sent to his spouse. Because the file was stored in electronic form and printing out the entire file would be costly, the firm requested that the Committee opine on the firm’s obligations in regard to sending the file in the specified format as requested by its former client.
At the outset, the Committee explained that in most cases, lawyers are not required to maintain client files in any particular format and confirmed that “the Rules permit electronic copies to be kept in lieu of paper originals.” The Committee also explained that clients are generally entitled to obtain copies of their files pursuant to Rule 1.15(c)(4) of the New York Rules of Professional Conduct, which provide that lawyers must “promptly . . . deliver to the client . . . as requested by the client . . . the funds, securities or other properties in the possession of the lawyer that the client . . . is entitled to receive.”
Regarding the issue of recouping the costs of providing file copies, the Committee noted that it is typically permissible for lawyers to “charge a former client the reasonable fees and expenses of assembling and delivering to the former client those documents that the client is entitled to receive.” The Committee then determined that “the costs of preparing electronic documents for delivery to the client are analogous to the costs of assemblage of paper documents that were at issue in that case.”
As such, the Committee concluded that in the case at hand, where the documents were being provided to a client who had retained the services of the law firm, the firm “may charge the client the reasonable fees and expenses incurred in printing out and delivering a paper copy.”
Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for solo and small law firms. She is also the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She can be reached at email@example.com.