By Shamla Naidoo Remember this rule: A lawyer must act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer's supervision. This month, a Houston attorney's client allegedly found files relating to her legal matters dumped in a parking lot. According to an investigative reporter, the files were held in a storage facility but when the attorney failed to pay the bill, stored materials were auctioned off to a stranger. Among the many issues in this matter, the ethical question is whether the attorney acted competently to safeguard the client’s files. It makes business sense for attorneys to outsource various services to third parties, but we remain responsible for meeting our ethical obligations as well as to manage related and foreseeable risks related to these services. Practically, what are some of the risks related to off-site storage of legal documents and what should an attorney do about these?
- Have you done due diligence in selecting a document storage provider?
- Who has access to your physical storage space and are they authorized to have access to your files?
- Do you have contingency plans for access/transfer of your files if you are no longer capable of making decisions?
- Do you have plans for your files at contract expiration/termination?
- Does your contract with the service provider allocate consequential damages?
- Have you disclosed the foreseeable risks to your client?