Can a lawyer destroy parts of a client's file at the client's request when the other side is expected to seek that material in discovery?
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This page answers the general question as of 1982. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
Opinion E-82-2 addressed a lawyer representing a client in a divorce who held a file containing information about the client's current and past assets, information the client did not want the spouse or the spouse's attorney to discover. The information was not within the attorney-client privilege. The client asked the lawyer to destroy 90 percent of the file, including the asset records. The spouse and the spouse's attorneys knew the asset information existed but had not yet requested production, though such a request was reasonably anticipated.
The committee concluded the lawyer may not do so. It relied on the former Wisconsin Supreme Court Rules barring suppression of evidence: a lawyer should not suppress evidence the lawyer or client has a legal obligation to reveal or produce (SCR 20.34(3)(i)), a lawyer may not conceal or knowingly fail to disclose what the lawyer is required by law to reveal (SCR 20.36(1)(c)), and a lawyer may not suppress any evidence the lawyer or client has a legal obligation to reveal or produce (SCR 20.43(1)). On those facts, where the lawyer had a reasonable belief that the information would be sought by the spouse or the spouse's attorneys, the committee concluded the relevant portions of the file may not be destroyed at the client's request.
Currency note
This opinion was issued in 1982, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update), and it applies the former Code provisions cited in the opinion. The prohibition on unlawfully destroying or concealing evidence is now in SCR 20:3.4(a) / Model Rule 3.4(a). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.
Common questions
Q: Can a lawyer destroy a client's file if the client asks?
A: Not on these facts. The committee concluded the relevant portions may not be destroyed where the lawyer reasonably believes the information will be sought by the opposing party.
Q: Did it matter that the asset records were not privileged?
A: The committee noted the information was not within the attorney-client privilege and treated it as material the client had a legal obligation to produce if sought, so it could not be destroyed to keep it from the spouse.
Q: What if no document request has been served yet?
A: The committee applied its conclusion where production had not yet been requested but was reasonably anticipated, resting on the lawyer's reasonable belief that the information would be sought.
Background and rules framework
The opinion interpreted the former Wisconsin Supreme Court Rules prohibiting a lawyer from suppressing or concealing evidence the lawyer or client is legally obligated to produce (SCR 20.34(3)(i), 20.36(1)(c), 20.43(1)). The current counterpart is the fairness-to-opposing-party rule barring unlawful destruction or concealment of evidence (SCR 20:3.4(a) / Model Rule 3.4(a)).
Citations and references
Rules of Professional Conduct:
- Wis. SCR 20.34(3)(i) (not suppressing evidence subject to a legal obligation to produce) (former Code)
- Wis. SCR 20.36(1)(c) (not concealing what the law requires the lawyer to reveal) (former Code)
- Wis. SCR 20.43(1) (not suppressing evidence subject to a legal obligation to produce) (former Code)
- Model Rule 3.4(a) (unlawful destruction or concealment of evidence)
See also
- WI Ethics Op. E-82-14: Destroying a Contract and Confidences of a Deceased Client
- WI Ethics Op. EF-17-01: Retention and Destruction of Closed Client Files
- WI Ethics Op. E-86-06: Candor to the Court on a Client's Prior Convictions
Source
- Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
- Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-82-2.pdf
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