PER CURIAM
PER CURIAM
The Supreme Court Committee on Professional Conduct is recommending that the court adopt a new rule to address issues related to the maintenance of a client's file and rights and obligations to materials contained in the file.
We publish the rule for comment. Comments should be made in writing before September 1, 2016, and addressed to: Stacey Pectol, Clerk, Supreme Court of Arkansas, Attention: Professional Conduct, Rule 1.19, Justice Building, 625 Marshall Street, Little Rock, Arkansas 72201.
Arkansas Rules of Professional Conduct
Rule 1.19. Client Files - Definition, Retention & Destruction. (a) Client file - Definition and duty to provide copies of client-file documents to the client. The use of the term "client" refers to both current and former clients.
(1) For purposes of these rules, the client file shall consist of any writings or property provided by the client to the lawyer and any documents, in electronic or print format, that are the product of the lawyer's representation, including pleadings, correspondence, and other documents prepared or received by the lawyer in furtherance of the representation.
(2) The following records are not included in the client file, even if they are maintained by the lawyer in association with the representation and the client file, and such records are not ones to which the client is entitled to review or receive a copy:
(A) The lawyer's work product, which includes the documents the lawyer used to reach an end product of the lawyer's representation, the lawyer's notes, and preliminary drafts of pleadings and legal instruments;
(B) Internal memoranda prepared by or for the lawyer;
(C) Legal research materials prepared by or for the lawyer and factual research materials, including investigative reports prepared by or for the lawyer for use in the representation, unless the material has been specifically paid for by the client or procured by the lawyer for the client's use;
(D) Documents such as internal conflict checks, firm assignments, notes regarding any ethics consultation, or records that might reveal the confidences of other clients.
(E) Documents that have not been filed with a tribunal, delivered or served, or other documents drafted but unexecuted or undelivered that the client has explicitly paid for the drafting or creation thereof shall be provided to the client as part of the file.
(3) Upon the client's written request in any format, the lawyer shall surrender the client's file to the client or, upon written authorization of the client, to the client's new lawyer.
(4) The cost of copying the file shall be the responsibility of the client, unless the lawyer has in his or her possession client funds to be reimbursed for such cost. If such funds exist, the lawyer may be reimbursed for such cost from the client funds held by the lawyer. A lawyer who has previously provided the client a copy of any part of the client file may charge the client for additional copies of the same documents. The client shall be responsible for the reasonable costs incurred in delivery, by mail or commercial-delivery service, of the client-file materials outside the lawyer's office. After delivery of the client file to the client or the client's new lawyer, the lawyer may deliver a statement for costs of production to the client but may not withhold delivery of the client file pending payment.
(5) The lawyer may, at no cost to the client, retain copies of all documents within the lawyer's file for the lawyer's purposes.
(6) The terms and conditions of the allocation of copying and delivery costs involved in the client file may be fixed by a written agreement between the client and the lawyer during the representation. (b) Client file retention and destruction.
(1) A lawyer shall take reasonable steps to maintain the client's file for five (5) years after the termination of the representation in a matter unless there are pending legal proceedings known to the lawyer that relate to the matter.
(2) At any time following the expiration of five (5) years following the conclusion of the representation in a matter, a lawyer may destroy the client's files related to the matter, provided the lawyer has made reasonable efforts to provide notice to the client and there are no pending legal proceedings known to the lawyer that relate to the matter.
(3) The providing to the client of the lawyer's file-retention-and-destruction policy in any writing, including an engagement letter or agreement or termination of representation letter, shall satisfy the notice requirement of this rule.
(4) Notwithstanding subparagraphs (1), (2), and (3), a lawyer in a criminal matter shall maintain the client's file for the life of the client if the matter resulted in a conviction and sentence of death, natural life, or life without parole, unless the client's file is turned over to some appropriate, permanent central-file repository that maintains such criminal case files in compliance with this rule.
(5) This rule does not supersede or limit a lawyer's obligations to retain or destroy contents of a client's file as otherwise imposed by law, court order, or rules of a tribunal.
Comments: