OSB September 2016

Can a lawyer keep client files in electronic-only form and scan and destroy the paper copies?

Short answer: Yes, qualified. The opinion concludes a lawyer may maintain a paperless client file and convert paper to electronic form, except for intrinsically significant originals like wills, deeds, and negotiable instruments, as long as the lawyer takes reasonable steps to safeguard, secure, and keep the electronic file available, and does not destroy original client documents without the client's express consent.

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This page answers the general question as of 2016. Ezel answers yours: whether it's allowed on your facts, under the current Oregon Rules of Professional Conduct, with citations.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.

View original ethics opinion (PDF)

Plain-English summary

A lawyer prefers to keep client file documents in electronic form only. For open matters, the lawyer plans to convert documents to electronic form and destroy the paper as it comes in; for closed matters with a mix of paper and electronic documents, the lawyer plans to convert the paper to electronic form and destroy the paper. The opinion asks whether the lawyer may maintain electronic-only files and convert existing paper files, and answers yes, qualified.

The opinion concludes there is no ethical prohibition against keeping the client file solely in electronic or paperless form, with limited exceptions for documents that are intrinsically significant or valuable original paper, such as securities, negotiable instruments, deeds, and wills. The lawyer must still safeguard client property under Oregon RPC 1.15-1(a), maintain confidentiality under Oregon RPC 1.6(c) and Oregon RPC 1.9(c)(2), and communicate with the client under Oregon RPC 1.4. A lawyer maintaining electronic-only files should therefore take reasonable steps to ensure the security and availability of the electronic documents during the appropriate time periods, including after the matter is completed or the representation ends.

The opinion adds practical limits. Lawyers and clients may make reasonable agreements about how the file will be maintained during and after a matter, and a lawyer converting closed-file paper to electronic-only form should confirm that doing so does not violate the retention agreement. The lawyer should also consider the former client's circumstances under Oregon RPC 1.16(d), such as whether an electronic-only file would be a hardship for an indigent or incarcerated former client who needs paper. The opinion stresses that even after reasonably preserving original client documents electronically, the lawyer should not destroy original client documents without the client's express consent.

In practice

This opinion (issued 2016) interprets the current Oregon Rules of Professional Conduct, but it is more than five years old, so readers should verify the current rule text before relying on specifics. The opinion holds that a paperless practice is permitted, subject to safeguarding, confidentiality, and communication duties, and to a carve-out for intrinsically significant originals. Per the opinion, the analysis turns on reasonable steps to keep the electronic file secure and available, agreement with the client about maintenance, sensitivity to a former client's need for paper, and a firm rule against destroying original client documents without express consent.

Common questions

Q: Can a lawyer keep the client file only in electronic form?

A: Yes, qualified. The opinion concludes there is no ethical bar to a paperless client file, except for intrinsically significant original documents like wills, deeds, securities, and negotiable instruments.

Q: What duties still apply to an electronic-only file?

A: The opinion concludes the lawyer must safeguard client property under Oregon RPC 1.15-1(a), maintain confidentiality under Oregon RPC 1.6(c) and 1.9(c)(2), and communicate under Oregon RPC 1.4, taking reasonable steps to keep the electronic file secure and available.

Q: Can the lawyer destroy the original paper after scanning it?

A: Not always. The opinion concludes the lawyer should not destroy original client documents without the client's express consent, and should keep intrinsically significant originals.

Q: What about a former client who needs the file in paper?

A: The opinion concludes the lawyer should consider the former client's circumstances under Oregon RPC 1.16(d), such as an indigent or incarcerated client for whom an electronic-only file might be a hardship.

Background and rules framework

The opinion interprets Oregon RPC 1.15-1(a) (safeguarding client property), Oregon RPC 1.6(c) and 1.9(c)(2) (confidentiality of current and former client information), and Oregon RPC 1.16(d) (protecting client interests on termination), corresponding to Model Rules 1.15, 1.6, 1.9, and 1.16. It cross-references the duties for third-party electronic storage of client materials.

Citations and references

Rules of Professional Conduct:

Oregon RPC 1.15-1(a) / Model Rule 1.15 (safeguarding client property)
Oregon RPC 1.6(c), 1.9(c)(2) / Model Rules 1.6, 1.9 (confidentiality)
Oregon RPC 1.16(d) / Model Rule 1.16 (protecting client interests on termination)

Other opinions cited:

OSB Formal Ethics Op. No. 2011-188 (rev 2015) (third-party electronic storage of client materials)
OSB Formal Ethics Op. No. 2005-125 (what constitutes the client file)

Source

Landing page: https://www.osbar.org/ethics/toc.html
Original PDF: https://www.osbar.org/_docs/ethics/2016-191.pdf

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