Illinois: Don’t Be Quick To Dispose Client Closed Files

According to a recent opinion from the Illinois Bar Association’s Ethics Committee, an attorney can usually dispose of closed client files after seven years without trying to locate the clients and give them advance notice. However, there may be specific situations where it is necessary or prudent to retain a file, or portions of a file, for longer than seven years.  

In the opinion, a law firm was incurring substantial storage costs for closed client files. The firm’s standard engagement letter provided that the firm would return client papers and property upon request, but that the firm reserved the right to destroy or dispose of materials within a reasonable time after the end of the engagement. However, locating and contacting former clients to seek consent for destruction, or to provide advance notice of destruction, would be impossible and costly in some situations.

By drawing on guidance from other jurisdictions, the Committee concluded that firms can generally dispose of closed client files after seven years without prior notice. The committee reasoned that the 10-year retention period proposed by the law firm was “clearly reasonable,” and “a general ‘default’ retention period of seven years for the ordinarily closed file materials of an Illinois law firm also appears reasonable.” Moreover, retaining closed client files for seven years is “consistent” with two Illinois Supreme Court’s lawyer record-keeping requirements and advantageous in the event of a lawyer liability claim. Lastly, the committee stated that it is unnecessary to send a former client notice of the proposed disposal of routine closed materials since attempting to locate former clients will often time be futile, time-consuming, and expensive.

Read the opinion here.

Young Lawyers Beware!

The Indiana Supreme Court recently suspended a young lawyer for at least two years for breaching 19 ethics rules.

In a per Curiam opinion, the justices reprimanded Coleman, for engaging in “systemic malfeasance” that reflected “exceedingly poorly on his fitness to practice law.”

Coleman’s violations included, but were not limited to, the following:

  • Falsely associating with Jonnie Cochran’s firm to gain clients;
  • Falsely inflating his resume;
  • Providing incompetent representation in child molestation case;
  • Negotiating an unauthorized plea deal;
  • Refusing to relinquish case file to replacement counsel;
  • Charging an unreasonable fee;
  • Entering into a “new fee agreement” under false pretenses; and
  • Concealing a relationship with witness/deponent.

The court noted that this case involved a single client and the lawyer had no prior disciplinary record, which weighed in Coleman’s favor. Therefore, the justices concluded that Coleman “should be suspended from the practice of law in [Indiana] for at least two years without automatic reinstatement.”

Professionalism and ethics are the cornerstones of the profession. Established lawyers know this, but young lawyers must come to understand that it is imperative that you maintain professional and ethical standards throughout your legal career. Otherwise, it could cost you the opportunity to practice.

Fortunately for Coleman, he may petition the Court for reinstatement to the practice of law so long as he completes his suspension, fulfills his duties of his suspension, and cures the causes of his suspension.

For the full opinion, click here.

Alaska Bar Association: Use of “Web Bugs” is Unethical

Alaska Bar Association recently advised that the use “web bugs” to track e-mail communications with opposing counsel violates The Alaska Code of Professional Conduct. Opinion 2016-1, describes “web bugs” as Internet surveillance tools that may inform e-mail senders of the following information:

  • whether and when the e-mail and/or attachments were opened;
  • how long recipients reviewed the e-mail and/or attachments;
  • how many times the e-mail and/or attachments were opened;
  • whether and when the e-mail and/or attachments were forwarded; and
  • the rough geographical location of the recipient.

The Opinion explains that web bugs may allow the sending lawyer to determine the undisclosed location of the opposing party or to gain insight into which sections of a settlement draft are most important to the opposing side based upon how much time is spent on various pages of a document.

Concurring with New York State Bar Association’s Opinion, the Alaska Opinion concludes that “web bugs” “impermissibly and unethically interfere with the lawyer-client relationship and the preservation of confidences and secrets,” required by Rule 1.6- Confidentiality. Thus, the Opinion advises that the use of web bugs is unethical, dishonest, and a violation of Alaska Rules of Professional Conduct Misconduct Rules 8.4(a) and 8.4 (c). Moreover, the opinion states that “even the disclosed use of a tracking device when communicating with opposing counsel” is impermissible.

To read the full opinion, click here.

New York Firms May Bill for Work of Unpaid Interns

A recent opinion issued by the Committee on Professional Ethics of the New York State Bar Association ruled that law firms may bill clients for the work of unpaid interns. Specifically, law firms are free to bill for work executed by unpaid interns, who receive academic credit in lieu of pay, so long as:

  • The internship program complies with applicable law,
  • The intern’s school does not object to the firm charging for the work, and
  • The charge is neither excessive nor illegal.

In response to the opinion, several organizations wrote an open letter, printed in the New York Law Journal, criticizing the decision as “fundamentally flawed.” Among the letter’s signatories are the CUNY Law School, the CUNY Labor Coalition, the NYU Black Allied Law Students Association, the NYU Latino Law Students Association, and the National Employment Law Project. In the letter, the signatories ask the ethics committee to reconsider its decision because the opinion “fails to consider the circumstances of most unpaid legal internships and the important moral questions they raise.”

The letter also challenges the assumption that unpaid internships at private firms comply with the applicable labor laws. The organizations contend that when a law firm charges for an intern’s free labor, they implicitly derive a substantial and economic benefit that cannot be offset by the academic credit that the interns receive, and they therefore may be entitled to pay.

To read Ethics Opinion 1090, click here. To read the letter, click here.