Cite as 2016 Ark. 2 40



## SUPREME COURT OF ARKANSAS

IN RE PROPOSED RULE 1.19

- ARKANSAS RULES OF PROFESSIONAL CONDUCT Opinion Delivered: June 2, 2016

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 document s prepared or received by the lawyer in furtherance of theCite as 2016 Ark. 2 40

2 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.Cite as 2016 Ark. 2 40

3 ( 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 purpose s
. (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 clientCite as 2016 Ark. 2 40

4 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 of whether the client has paid any, some, or all fees and costs
incurred or

charged by the lawyer, recognizing the differences between engagementsCite as 2016 Ark. 2 40

5 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 an d 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.Cite as 2016 Ark. 2 40

6 [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 orlegalservice 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 that
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-anddestruction 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.