Digital White Papers

ILTA WHITE PAPER: NOVEMBER 2015 WWW.ILTANET.ORG 18 • Administrative records, including time and billing records, related to the representation. The requirements for preservation and retention of client files and documents within client files arise from several sources, including: • Requirements to produce documents that matter for the representation of a client or protecting its interests in litigation and administrative proceedings. • Obligations under the rules of ethics governing lawyers to protect and preserve a client's documents, i.e., return documents to a client at the completion of representation or provide a client's documents to another lawyer who might represent the client after the completion or termination of a representation. The following are 12 common objections from lawyers and our suggestions for overcoming them. I'm uncomfortable regarding my legal ethics responsibilities. Don't I need to preserve documents? Some documents must be preserved in their original paper form. Lawyer and staff must exercise special care when the lawyer receives a document of intrinsic legal value or it is the only available or accessible copy of a document. To analyze this guidance, we need to break down the components of a client file and consider a lawyer's responsibilities for it under ethics rules. A client file comprises several kinds of documents and other items in paper, physical and electronic form. These include, at least: • Paper documents delivered to a lawyer by a client or third party. • Electronic documents and communications received or sent by a lawyer. • Electronic documents, in draft and completed, created by a lawyer. • Notes, memos, and markups and annotations of documents prepared by a lawyer, either in paper or electronic form. TOP 12 OBJECTIONS TO SCANNING AND DESTROYING PAPER Focusing here on the ethics requirements, a 2007 ethics opinion of the State Bar of Arizona (Opinion 07-02) offers a good starting point for the discussion. It concludes: In appropriate cases, a lawyer may keep current and closed client files as electronic images in an attempt to maintain a paperless law practice or to more economically store files. After digitizing paper documents, a lawyer may not, without client consent, destroy original paper documents that belong to or were obtained from the client. After digitizing paper documents, a lawyer may destroy copies of paper documents obtained from the client unless the lawyer has reason to know that the client wants the lawyer to retain them. A lawyer has the discretion to decide whether to maintain the balance of the file solely as electronic images and destroy the paper documents.

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