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Ethics Advisory Opinions
UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 98-33Facts:
Attorney has asked how to handle the accumulation of voluminous closed files. He wishes to hire a company to place his "dead" files on computer disk or other media which would save space, but which would allow the retrieval of the documents if necessary.
Question:
May an attorney use a document imaging service to store closed files on a CD, microfilm, or microfiche, which file images are readable and reproducible if necessary, and thereafter shred or otherwise dispose of the original hard copies of the closed files?

Summary:
This issue is basically one of substantive law on which the committee cannot opine; however, the committee's purpose is to render assistance to members of the South Carolina Bar, and under that doctrine the committee offers the following informal advice.

The attorney and client may enter into an agreement regarding the retention of a file, which would be the recommended course of action. Although there is no formal court rule or case law on this issue, Rule 1.15 of Rule 407, SCACR, and Rule 417, SCACR, would suggest that records should be retained for a period of at least six years. There appears to be no prohibition in placing the property on a medium, such as computer disk, microfilm, or microfiche, and thereafter disposing of the original hard copies, as long as there is no prejudice to the client. The attorney should also make reasonable efforts to insure confidentiality with all suppliers and vendors who would have access to client records.

Opinion:
The problem of the retention and disposal of files has been an issue attorneys in South Carolina have faced for many years. One of the main ethical issues may arise with the portion of a file which belongs, as a matter of law, to the client. The attorney and client may enter into an agreement regarding the retention of a file, which would be the recommended course of action. In any event a lawyer should hold the property of others with the care required of a professional fiduciary.

Although there is no formal court rule or case law on this issue, Rule 1.15 of Rule 407, SCACR, and Rule 417, SCACR, would suggest that records should be retained for a period of at least six years. (See also, Ethics Advisory Opinion 92-19.) In addition to financial records to be kept pursuant to Rule 417, SCACR, Paragraph (a)(3) therein requires that copies of attorney-client retainer and compensation agreements under Rule 1.5, SCACR, also be kept for six years.

None of the rules or the previous ethics advisory opinions address whether the records or property entrusted to the attorney may be placed on a medium, such as computer disk, microfilm, or microfiche, and the original hard copies destroyed. There would appear to be no prohibition in placing the property on a medium, such as computer disk, microfilm, or microfiche, and disposing of the original hard copies, so as long as the lawyer retains the system or access to the system used to read or retrieve the information.

In this case as in all cases where an outside vendor or supplier is under contract to a law firm, the attorney must insure preservation of client confidentiality. It is the opinion of this Committee that a law firm should make reasonable efforts to insure confidentiality with any outside supplier or vendor who, by the nature of the contract or service, would have access to client records. These suppliers or vendors would include, but not be limited to, accounting firms, tax consultants, fee auditors (see Opinions 98-36 and 97-22) and document imaging services. See also Rule 1.6 of Rule 407, SCACR.