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                   SUPREME COURT OF ARKANSAS

                                                        Opinion Delivered: December    15, 2016

IN RE RULE 1.19- ARKANSAS RULES
OF PROFESSIONAL CONDUCT




                                              PER CURIAM


         The Supreme Court Committee on Professional Conduct proposed 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. By per curiam opinion dated June 2, 2016, we published

 the proposed rule for written comments due to the court by September 1, 2016. In re

 Proposed Rule 1.19- Arkansas Rules of Prof’l Conduct, 2016 Ark. 240 (per curiam).

         After reviewing and taking into consideration the comments submitted, we now

 adopt the proposed rule with some minor changes, effective on January 1, 2017. The new

 rule is published below.

                           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.
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           (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 paper or electronic 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.

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,

creation, or obtaining thereof, including such items as transcripts, depositions, medical

records, and reports of experts, shall be provided to the client as part of the file.

           (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.


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               (E) Items not included in the list of excluded items shall be considered to be

part of the client file to which the client is entitled.

       (3) Upon the client’s written request in any format, the lawyer shall surrender the

client’s original file or a copy of the file, in paper or electronic format, to the client. Upon

written authorization of the client, the lawyer shall surrender such file to 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.

       (4) The cost of copying the file shall be the responsibility of the client. If the lawyer

has in his or her possession client funds to be reimbursed for such copying cost, 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 of costs of copying of the file to the

client but may not withhold delivery of the client file pending payment.

       (5) If the lawyer provides the original client file to the client, 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 at

the inception of the representation.


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(b) Client file retention and destruction.

        (1) A lawyer shall take reasonable steps to maintain the client’s file in paper or

electronic format for five (5) years after the conclusion of the representation in a 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.

        (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,

by plea or trial, 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:

        [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


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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


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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.




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