Ethics Committee Advisory Opinion #1985/6-4
March 11, 1986
A duty of confidentiality continues after the attorney-client relationship ends, so that a third party may not have access to a client’s file without the client’s informed consent. (Rule 1.6).
In considering a request to return documents and review the file by a spouse in a divorce that was later withdrawn, an attorney owes a duty to his or her client to explain the legal and practical aspects of the request, so that the client may make an informed decision whether to authorize client’s spouse to have access to the client’s file. (Rule 1.4; 1.6; 2.1).
An offer by a client’s spouse (in a divorce) to pay the attorney’s fees can be accepted only after consultation and only if confidentiality can be preserved and there is no interference with the lawyer’s independence of professional judgment or the client-lawyer relationship; such an offer could only be accepted if made unconditionally. (Rule 1.7(b); Rule 1.8(b)).
It is the client (assuming not mentally impaired) that makes the decisions whether to release file documents to others, and the attorney should not usurp the client’s right to make an informed decision. (Rule 1.2(a); 1.4; 1.14).
There is no ethical bar to purging a client’s file, requested by a third party, if the client consents, and no court orders or laws are violated.
An attorney must consider a variety of factors in deciding whether or not to retain copies of information, including duties imposed by law, the client’s interests and desires, any foreseeable need therefor, and its evidentiary value. Either retention or destruction is ethically permissible, provided that the attorney acts with the client’s informed understanding and with a view to the above factors. (Rule 1.2(a); Rule 1.4; Rule 1.14; Rule 3.4(a); Rule 4.4)
- Under the facts presented is Attorney under a duty to purge the attorney’s files of documents relating to marital assets at Husband’s request after dismissal of the Libel and Cross-Libel for Divorce?
- Under the facts presented, would Attorney be acting in the Client’s best interest in acceding to Husband’s request to review Attorney’s files to assure himself that they have been purged of all documents which he deems relate to his business and personal affairs?
- Under the facts presented, does Attorney’s ethical obligation to exercise independent professional judgment on behalf of a Client continue after the dismissal of the Libel and Cross-Libel for Divorce?
- Under the facts presented, is Attorney permitted to exercise her independent professional judgment to protect her Client’s interest by refusing to purge her files at Husband’s request?
- In any event, is Attorney permitted to retain copies of all documents material to a litigation matter in which Attorney represented one of the parties?
- Under the circumstances, what would you advise Attorney to do with respect to Husband’s request?