Two recent ethics opinions from the New York State Bar Association Committee on Professional Ethics addressed the duties of lawyers with respect to the Retention And Disposition Of Lawyer’s Closed Files (Opinion 1192, issued in June) and the Disposition Of Wills (Opinion 1182, issued in January), which we previously addressed in March. These opinions consider seemingly prosaic but ever present and significant issues, and provide important reminders for practitioners. In this article we will highlight the principle elements of guidance that Opinion 1192 provides, and supplement those lessons with a note of the special recordkeeping issues that arise in the context of lawyers (and support staff) working remotely during the pandemic.
It is important to understand the underlying principles that govern the subject of document and file preservation and management in the New York Rules of Professional Conduct (RPC’s). Apart from the fundamental duty to preserve confidentiality in RPC 1.6 (to which we will return in considering the special issues that arise from remote working), the rules that create the base line for lawyers’ duties in this realm are set out in RPC 1.15 (c) and (d). Sub-section (c) provides:
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