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 95-18
A client purchased a food product which allegedly contained a foreign substance which made her whole family sick, necessitating medical attention. She brought the food product to a lawyer's office for an initial consultation. The lawyer determined that he would be willing to represent her in the matter, and asked that she allow him to place the perishable food product in the office freezer in order to preserve it so that it could be tested by the F.D.A.
During the next week the lawyer maintained contact with the client. However, from the second week after the initial consultation until the present, there has been no further contact with the client. The lawyer left telephone messages for the client to contact him and mailed a letter to the client advising her to contact his office as soon as possible.
Having received no response, a disengagement letter was sent to the client via certified mail. She received the disengagement letter as evidenced by the return receipt which she personally signed. In the disengagement letter the lawyer advised the client to immediately come to his office and retrieve her property.
More than one month has passed and the lawyer is maintaining the perishable food item in his office freezer.
Questions:
1. How long must a lawyer hold client property, which is potential evidence relating to civil litigation, when the client fails to retrieve the property after no longer being represented by the lawyer?
2. How should a lawyer handle the safekeeping and disposal of client property, other than funds, when the client fails to retrieve the property after disengagement?
Summary:
1. There is no set amount of time a lawyer must hold on to client property, other than funds, when the client fails to retrieve the property after no longer being represented by the lawyer. Rather, ample time and sufficient notice must transpire before the lawyer may discontinue safeguarding the property and dispose of it.
2. A lawyer must appropriately safeguard potential civil evidence which is property of a former client until the lawyer has made diligent efforts to return the property to the former client. After all reasonable steps necessary to effect a return have been completed, the lawyer must give the former client ample time to retrieve the property after furnishing final notice to the client that the property will be destroyed if not retrieved. After all reasonable steps have been taken, final notice has been properly effected, and ample time has transpired after final notice, if the former client still has not received nor retrieved the property, the lawyer may dispose of the potential evidence.
Opinion:
(Question 1) Rule 1.15(a) of the South Carolina Rules of Professional Conduct (South Carolina Appellate Court Rule 407) is applicable. This rule on safekeeping property states, in relevant part: A lawyer shall hold property of clients or third persons that is in the lawyer's possession in connection with representation separate from the lawyer's own property .... Other property [other than funds] shall be identified as such and appropriately safeguarded.
The Comment to Rule 1.15 elaborates, in relevant part: A lawyer should hold property of others with the care required of a professional fiduciary.
Because the client's perishable property, which is potential evidence in potential civil litigation, has been given to the lawyer for safekeeping, the lawyer has a fiduciary duty to his client to safeguard that property as though it were his own. That fiduciary duty extends to property of prior clients as well. However, after the client no longer retains the lawyer, the duty does not extend forever. Instead, the duty extends for a reasonable period of time after disengagement. The reasonable period of time is gauged not by the calendar, but rather, by the steps taken by the attorney to return the property and notify the client of the consequences of not accepting return of the property. The amount of time must be sufficiently ample so as to allow the attorney to be sure that the client is abandoning the property.
(Question 2) As noted above, Rule 1.15(a) asserts that client property, other than funds, must be identified as such and appropriately safeguarded. However, after disengagement, the client is no longer a client of the lawyer. Yet, the client's property must still be safeguarded by the attorney until sufficient steps have been taken by the lawyer to ensure that the property is being abandoned by the former client.
At first glance, it would appear that Rule 3.4(a) of the South Carolina Rules of Professional Conduct would also apply to this situation. It states: A lawyer shall not: (a) Unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act. However, this rule concerns "Fairness to Opposing Party and Counsel." Rule 3.4 contemplates situations where attorneys might wish to destroy evidence to gain some advantage at trial or in negotiation with the opposing party. In this case the lawyer has no desire or intent to destroy evidence to gain any advantage whatsoever. Moreover, the lawyer is not attempting to unlawfully obstruct another party's access to evidence. To the contrary, the lawyer is attempting to preserve the evidence and return it to its rightful owner so it may be of some benefit to her later. If after diligent efforts it becomes apparent that the former client is abandoning her property and potential evidence, the lawyer's duty to safeguard ceases, and he will not be unlawfully obstructing justice by destroying the evidence.
Because the lawyer does not want to obstruct justice by destroying evidence, he must make sure that he makes reasonable and diligent efforts to return the evidence to the owner and adequately notifies the owner of the consequences of not accepting the evidence.
In this case the lawyer's first step should be to attempt to physically return the perishable property to the former client. Reasonable efforts must be made not to destroy the potential evidence. If this step fails, the lawyer's second step should then be to notify the owner of the property that he has the owner's property available to be picked up by the owner anytime during regular business hours at his office. The lawyer should state that the property is being safeguarded and that it is imperative that the owner retain her property because of its value in potential litigation. He should also state that he can no longer care for the property since he is no longer representing the client and will only safeguard the property for a specific reasonable time.
After expiration of the stated time period, he is safe to assume that the perishable property is abandoned. At that time, the lawyer may dispose of the property.
In conclusion, a lawyer must appropriately safeguard potential civil evidence which is property of a former client until the lawyer has made diligent efforts to return the property to the former client. After all reasonable steps necessary to effect a return have been completed, the lawyer must give the former client ample time to retrieve the property after furnishing final notice to the client that the property will be destroyed if not retrieved. After reasonable steps have been taken, final notice has been properly effected, and ample time has been transpired after final notice, if the former client still has not received nor retrieved the property, the lawyer may dispose of the former client's property and potential evidence.