Ark. R. Prof. Cond. 1.19
Ark. R. Prof. Cond. 1.19
COMMENTS
[1] The Court has adopted a rule regarding the client file that generally follows the "end product" approach as discussed in Travis v. Committee on Professional Conduct, 2009 Ark. 188. In this new rule, the Court has endeavored to balance the needs and interests of the client with the obligations and burdens that may be placed on the lawyer and attempted to give basic guidance that will be used to allow the client and the lawyer to resolve any issues or disputes that may arise in these areas without resort to the courts or other agencies. This rule does not attempt to address all scenarios that may arise, especially in the area of whether the client has paid any, some, or all fees and costs incurred or charged by the lawyer, recognizing the differences between engagements where the fee is contingent, hourly, fixed, or otherwise based.
[2] At the beginning of representation and in writing, the lawyer should inform the client of the client's rights regarding the client file, including any potential charges that may be associated with the lawyer's providing the client with a copy of the client file or duplicate copies of client file materials.
[3] This rule is not intended to impose an obligation on a lawyer to preserve documents that the lawyer would not normally preserve, such as multiple copies or drafts of the same document. A client's file, within the meaning of this rule, consists of those things, such as papers, writings, electronic data, and property relating to the representation. Although the client file includes the client's "property, " the lawyer's obligations with respect to some client "property" items are distinct and governed by Arkansas Rule of Professional Conduct 1.15.
[4] The lawyer may comply with this rule by maintaining the client's files in, or converting the files to, electronic form, provided the lawyer is capable of producing a paper version if necessary. In certain criminal matters, the lawyer is required to maintain the client's file for an extended period of time, and maintaining the file in its original format may become impracticable.
[5] This rule does not affect the lawyer's obligation under Rule 1.16 of the Arkansas Rules of Professional Conduct to surrender the paper and the property to which the client is entitled at the termination of representation or any obligation under Rule 19 of the Arkansas Rules of Appellate Procedure-Criminal to provide existing copies of appellate briefs, trial records, or transcripts to convicted offenders.
[6] These rules do not supersede obligations imposed by other laws, court orders, tribunal or jurisdictional rules. These rules do not supersede specific retention requirements imposed by other rules or regulations, such as rules related to non-probated wills, certain trusts, and requirements to retain original signed documents for a period of time. If a document is subject to more than one retention requirement, the lawyer should maintain the document for the longest applicable period.
[7] Generally, this rule does not apply to lawyers employed by a private corporation or other entity as in-house counsel. Those lawyers are considered employees of the corporation or entity, and the client's files are considered to be in the possession of the client and not the lawyer. In regard to lawyers employed by public defenders or legal-service organizations or governmental agencies to represent third parties under circumstances where the third-party client's files are considered to be files and records of the organization or agency, the lawyer must take reasonable measures to ensure that the client's files are maintained by the organization or agency in accordance with this rule.
[8] Lawyers are reminded that there is no statute or rule of limitation relating to when an attorney-discipline complaint or charge may be filed or time-barred, a factor that should be considered in a lawyer's determination of an appropriate file-retention-and-destruction period and policy.