What is a lawyer’s ethical responsibility when client files are destroyed by flood or other disaster?
By Nerino Petro at 26 June, 2008, 11:55 am
One of the many issues facing Wisconsin lawyers impacted by the recent flooding is figuring out what to do with client files that have been damaged? What are the ethical implications of losing these files due to the damage? For many attorneys, files have been soaked not only with water, but sewage, fuels and mud as well. I turned for expert guidance to Attorney Tim Pierce, Ethic’s Counsel for the State Bar of Wisconsin for his input on this issue. Here’s what Tim has to say:
Files are the property of the client which the lawyer holds in trust on behalf of the client (See Wisconsin Ethics Opinion E-00-03 and SCR 20:1.15). As such, the lawyer has a responsibility to “appropriately safeguard” client files [See SCR 20:1.15(6)]. This obligation, however, does not mean that lawyers have a responsibility to guarantee the safety of client files, but rather to take appropriate and reasonable steps to protect client files. When, however, files are destroyed by events beyond the lawyer’s control, such as a flood, despite the lawyer’s reasonable efforts to protect the files, the lawyer should take certain steps. First, current clients should be notified in a reasonably timely fashion of the destruction of their file. Second, with respect to current clients, the lawyer must assess whether the destruction of the client’s file and/or other circumstances prevent the lawyer from providing the client with competent and diligent representation. If the lawyer concludes that the lawyer cannot provide competent representation under the circumstances, the lawyer should so advise the client and withdraw [See SCR 20:1.16(a)]. Third, with respect to closed client files, the lawyer should attempt to notify the former clients of the destruction of their files when time and circumstances permit (See Wisconsin Ethics Opinion E-98-01).
You can submit further questions on this or any other legal ethics question to Tim at (608) 250-6168 or (800) 444-9404, ext. 6168, Monday through Friday, 9 a.m. to 4 p.m.