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                  SUPREME COURT OF ARKANSAS


IN RE PROPOSED RULE 1.19 -                               Opinion Delivered: June 2, 2016
ARKANSAS RULES OF
PROFESSIONAL CONDUCT




                                         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
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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.


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      (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


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 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:

 [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 o f whether the client has paid any, some, or all fees and costs

 incurred or charged by the lawyer, recognizing the differences between engagements


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where the fee is contingent, hourly, fixed, or otherwise based.

[2] The lawyer should, at the beginning of representation and in writing, 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 duplicate 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" are distinct and governed by Arkansas Rule of

Professional Conduct 1.15.

[4] The lawyer may not dispose of the client’s file if the lawyer has knowledge of any

pending matters related to the representation. 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.


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[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 t h a t

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.

[9] Lawyers are also reminded that new Rule 1.5(b)(2) now requires the use of

a written engagement or fee agreement in most representations.




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