Release, preservation or destruction of clients' financial and business documents when client cannot be located.
FACTS
The inquiring lawyer's law firm represented a client in a dissolution of marriage proceeding which became final in 1987. While the litigation was pending, the client delivered various financial and business documents to the inquiring lawyer's law office in order to respond to a request for production.
The inquiring lawyer is still in possession of these documents. He has been unable to contact the client, despite making reasonable efforts to do so for more than a year. The inquiring lawyer states that his law firm has sent letters to several of the client's last known addresses, and has checked with telephone directory assistance both in Arizona and in Nevada, where the client was last known to reside.
The inquiring lawyer notes that the financial and business documents were once the property of both parties to the dissolution proceeding. The inquiring lawyer's client had them in his possession after the parties separated pending the dissolution decree.
QUESTION
May the inquiring lawyer ethically release the financial and business documents to the lawyer for his client's former spouse; or, in the alternative, may he destroy the documents?
ETHICAL RULES INVOLVED
ER 1.6. Confidentiality of Information
(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b), (c) and (d) or ER 3.3(a)(2).
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ER 1.15. Safekeeping Property
(a) A lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property. Funds shall be kept in a separate account maintained in the state where the lawyer's office is situated, or elsewhere with the consent of the client or third person. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation.
Comment to ER 1.15
A lawyer should hold property of others with the care required of a professional fiduciary....
ER 1.16. Declining or Terminating Representation
(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.
RELATED SUPREME COURT RULE (17A A.R.S., Rules of the Supreme Court, at p. 437);
Rule 43. Trust Account Verification
(a) Duty as to client property; records. Every active member of the bar shall maintain complete records of the handling, maintenance and disposition of all funds, securities and other assets of a client which have at any time come into his possession. ... The lawyer shall preserve these records for a period of five years after final disposition by him of said funds, securities and other assets.
OPINION
According to ER 1.15(a) and the Comment thereto, the inquiring lawyer must keep the client's documents separate from his own documents and files, and must exercise the care of a professional fiduciary in holding his client's records.
Nothing in Arizona's Rules of Professional Conduct specifically addresses the issue of what to do with a client's documents when the client disappears. ER 1.15(a) and Rule 43(a) both require a lawyer to preserve records of the handling and disposition of client property and funds for a period of five years following the disposition. However, nothing in the Ethical Rules speaks to the actual disposition of the property or funds. Additionally, ER 1.16(d) requires a lawyer to take reasonably practicable steps to protect the client's interests at the termination of representation. Again, this Rule does not distinguish the situation where representation is terminated voluntarily from one where the representation is terminated involuntarily, as here.
Nevertheless, ER 1.15 and ER 1.16, read together, would seem to require the lawyer to take all reasonable measures to contact the client to determine his wishes with respect to the final disposition of his records. The discussion of ER 1.16(d) in the ABA/BNA Lawyers' Manual on Professional Conduct states that "All the ethical duties attached to the safeguarding, recording, and disbursing of client's funds and property continue after the lawyer's representation of the client has otherwise come to an end." ABA/BNA Lawyers' Manual on Professional Conduct, p. 45:1201. Moreover, opinions of professional ethics committees in other jurisdictions agree that a lawyer, in possession of a missing client's property, must make every reasonable effort to contact the client. See, e.g., Committee on Professional and Judicial Ethics of the State Bar of Michigan, Informal Opinions CI-1143 and CI-1144 (both dated April 9, 1986) (ABA/BNA Lawyers' Manual, supra, p. 901:4754), requiring a lawyer to make reasonable attempts to notify the client of the existence of the client's funds in the lawyer's hands, and recommending that the lawyer publish notice to the client in a newspaper of general circulation in the area of his law practice and in the area where the lawyer suspects that his client resides or does business.
If the inquiring lawyer cannot locate his client after exhausting all reasonable measures to do so, he still must maintain the documents with the standard of care of a professional fiduciary until· the documents are presumed, under Arizona law, to be abandoned, or until there has been a judicial determination regarding disposition of the client's property. See Committee on Professional and Judicial Ethics of the State Bar of Michigan, Informal opinion CI-1144, supra; Committee on Professional Responsibility of the Vermont Bar Association, Opinion 86-9 (August 1987); and State Bar of New Mexico Advisory Opinions Committee, Opinion 1983-3 (July 25, 1983) (ABA/BNA Lawyers' Manual, supra, p. 801:6001), all of which concluded that a lawyer may not dispose of a client's property until it is deemed to have been legally abandoned. Therefore, the inquiring lawyer is advised to consult the Arizona statutory and case law to determine at what point the client's property will be deemed legally abandoned.
If the inquiring lawyer were in possession of funds belonging to a missing former client, disposition of the funds would be determined by reference to the Uniform Unclaimed Property Act, adopted in Arizona, effective January 1, 1984, as 14 A.R.S. Sections 44-301 to 44-340, as amended.
The inquiring lawyer may not transfer the client's documents to the lawyer for the client's former spouse in the absence of the client's authorization to do so, to the extent that the documents relate to the lawyer's representation of the client.
ER 1.6(a) provides that "information relating to representation of a client" must be kept confidential, unless the client consents after consultation, "except for disclosures that are impliedly authorized in order to carry out the representation," and "except as stated in paragraphs ( b}, (c) and (d) or ER 3.3(a)(2)," none of which are applicable to the instant situation. A lawyer's duty of confidentiality continues after the client-lawyer relationship has terminated. Comment to ER 1.6. Although disclosure of at least some of the documents may at one point have been impliedly authorized to carry out the representation -- because they were to be disclosed in compliance with the request for production -- this would no longer be a basis for turning the documents over to the lawyer for his client's adversary.
In addition, it would seem that the inquiring lawyer's fiduciary responsibility with respect to the preservation of his client's documents would prevent him from transferring the documents to third parties without the client's consent. However, the scope of the inquiring lawyer's specific fiduciary responsibility is a question of law, not of ethics. This committee may not advise the inquiring layer definitively on questions of law. (See this committee's Statement of Jurisdictional Policies, para. 6(a).)
In conclusion, we hold that the inquiring lawyer must make every reasonable effort to locate his client, since the client is the one with the ultimate power to dispose of his property, or to authorize the lawyer to do so. Once reasonable efforts have failed, the lawyer must determine whether, under Arizona law, the property is deemed to have been legally abandoned before he may dispose of it. ER 1.6, as well as the inquiring lawyer's fiduciary responsibilities concerning the client's property, prohibit him from transferring the property to either the lawyer for his client's adversary or to the adversary in the dissolution proceeding personally.
Formal Opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceedings.
©State Bar of Arizona 1991