Coming to praise rather than to bury (Part 1 of 2)

For a change of pace, I write today about a very well constructed ethics opinion out of New York.  (To keep this positivity train chugging along for at least one more day, my plan for tomorrow is to discuss a federal court decision out of Florida impacting attorney ethics that is also praiseworthy and that should be fodder for challenging a similar prohibition on how lawyers can market themselves in my state.)

Last month, the New York City Bar released Formal Opinion 2015-6, addressing several unpleasant issues relating to duties to clients that a lawyer must wrestle with in already difficult circumstances, where an accident or disaster has destroyed a client’s file or where an accident or disaster has compromised the security of the client’s confidential information.  The opinion makes reference to a particular relatively recent event as an example of how this could happen – a February 2015 fire in a Brooklyn warehouse (presumably this one), that destroyed some attorney files among other private materials.  The committee also offers other examples where the loss of client files seems more like an afterthought compared to human tragedy involved, such as hurricanes and terrorist attacks.  In addition to offering guidance for (1) when a lawyer has to notify a current or former client about files being destroyed and (2) what a lawyer has to do after it has happened in terms of attempting reconstruction of a file, Formal Opinion 2015-6 also discusses the lawyer’s duty to notify about potential compromise of confidential information in such circumstances.

In a 2010 opinion, this same NYC Bar committee addressed when a lawyer could ethically destroy file materials after a case ended.  That opinion divided the world of a lawyer’s client file into 3 categories of documents: (1) documents having “intrinsic value” or that “directly affect property rights;” (2) documents the lawyer “knows or should know may still be necessary or useful to the client, perhaps in the assertion of a defense in a matter for which the applicable limitations period has not expired;” and (3)  documents that “furnish no useful purpose in serving the client’s present needs for legal advice.”

Echoing the treatment of the answer to “when can you destroy?” provided in the 2010 opinion, Formal Opinion 2015-6 says that as to Category 1 documents, absent a contrary earlier agreement between lawyer and client, the lawyer will have an affirmative obligation to notify the client about the destruction of such documents.  As to Category 3, the answer is as simple, albeit flipped – unless prior agreement to the contrary, no duty to notify.  Recognizing that most of the analysis about duty to notify flows one way or another from RPC 1.4 on a lawyer’s obligations to communicate with clients, the committee reminds that, if a client asks about their file in the wake of such an event, the lawyer’s ethical duty to respond to reasonable requests for information would entail promptly responding to the client to let them know of the inadvertent destruction even of such documents of “relatively little importance” as Category 3 materials.

As to Category 2 documents, Formal Opinion 2015-6 rightly recognizes that the blueprint provided in the 2010 opinion about post-representation destruction cannot be readily applied to a situation where such materials are destroyed during an ongoing client engagement.  Thus, if the client’s matter is still active, then the lawyer is going to have a duty to notify the client about destruction of Category 2 documents.  If the accident or disaster only has hit files for a closed matter, then the rubric from the 2010 opinion works and the lawyer has to undertake a determination about whether the “client foreseeably may need” the documents to decide what to do.  The committee, smartly, also makes the practical and prudent point that the safest route on Category 2 documents will always be to go ahead and notify the client of the inadvertent destruction.

Turning to any duty to reconstruct the file, the committee explains that the lawyer will have to first assess whether any of the files destroyed are still “needed to continue providing competent and diligent representation on open matters” and, if the answer is yes, then “the lawyer must make reasonable efforts to reconstruct the destroyed file.”  By, for example, trying to get copies of documents that would have been in the file from the court, co-counsel, opposing counsel, or the client herself, or some combination of those or similar sources.  Formal Opinion 2015-6 then indicates that when the duty to attempt to reconstruct has been triggered, a lawyer who is unable to do so sufficiently to be able to continue to provide competent and diligent representation would be obligated to notify the client of that inability.

If I can quibble with the committee in just one respect it would be that this would have been a good place to expand upon the relationship between notifying about the destruction and performing the reconstruction and the timing of those events.  For example, if the lawyer reasonably believes that they can almost fully reconstruct the file, can they get that accomplished first, quickly, and then provide notice to the client simultaneously of the prior destruction and the believed-to-be-successful reconstruction?  Or does the committee mean to say truly that the timing is such that the lawyer must inform of the destruction before the lawyer will know of any chance of success in reconstructing to be able to continue the representation appropriately?

Finally, Formal Opinion 2015-6 correctly answers the question about a lawyer’s duty to notify clients of the potential compromise of confidential information in the wake of such an accident or disaster.  Returning again to the Brooklyn warehouse fire example, and the clear visual impression of various papers scattered about around the fire scene such a scenario provides, the committee explains that when the duty to notify of destruction would arise so too will the lawyer face a duty to notify clients that confidential information may have been compromised.  If I am permitted to quibble with just two items, this would be the second one.  The committee appears to imply that the duty to notify of compromise confidential information wouldn’t apply to Category 3 documents, but I’m dubious that any differentiation on categories would be as justifiable on the question of potential exposure of confidential information to third parties.

While addressing only accidents and disasters, it is not difficult to see how this opinion’s analysis of the duty to notify of compromise of confidentiality would be the same if the question instead was one of digital disaster — an electronic data breach at a law firm.  And, along those lines, another question that the committee leaves unaddressed as beyond the scope of its current effort — “the extent of a lawyer’s duty to take affirmative steps to protect confidential information in anticipation of a disaster” — is even more challenging to contemplate as to data breach.  Formal Opinion 2015-6 at least hints in fn 3 at possible ways to anticipate and protect against physical destruction of file through accidents or disasters – off-site storage of backup tapes and cloud storage.  The answer to what will come to be expected of lawyers and law firms in trying to anticipate and protect against data breaches will, no doubt, be addressed by this or another committee (or twelve).

Hopefully, a consensus will develop around an acknowledgment that while it is generally quite true that an ounce of prevention is worth a pound of cure, it is equally if not more correct that:

Sometimes there is nothing you can do. – Neil Gaiman, Neverwhere


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