Cite as 2019 Ark. 354 SUPREME COURT OF ARKANSAS
Opinion Delivered: November 21, 2019
IN RE AMENDMENT TO RULE 1.19- ARKANSAS RULES OF PROFESSIONAL CONDUCT
PER CURIAM
On December 15, 2016, we adopted Rule 1.19 of the Arkansas Rules of
Professional Conduct, which addresses issues related to the maintenance of a client’s file
and rights and obligations to materials contained in the file. In re Rule 1.19-Arkansas Rules
of Prof’l Conduct, 2016 Ark. 468 (per curiam). The new rule became effective on January 1,
2017. We now adopt minor changes to this rule to ensure that the language in Rule
1.19(b)(3) regarding the notice that must be provided to the client is consistent with
subsection (b)(2). The revised rule is published below, with the changes set forth in “line-
in, line-out” fashion (new material is underlined; deleted material is lined through).
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 paper or electronic
format, that are the product of the lawyer’s representation, including pleadings,
correspondence, and other documents prepared or received by the lawyer in furtherance of
the representation. 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, creation, or obtaining thereof, including such items as
transcripts, depositions, medical records, and reports of experts, shall be provided to the
client as part of the file.
(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
2 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) Items not included in the list of excluded items shall be considered to be part
of the client file to which the client is entitled.
(3) Upon the client’s written request in any format, the lawyer shall surrender the
client’s original file or a copy of the file, in paper or electronic format, to the client. Upon
written authorization of the client, the lawyer shall surrender such file to 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.
(4) The cost of copying the file shall be the responsibility of the client. If the lawyer
has in his or her possession client funds to be reimbursed for such copying cost, 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 of costs of copying of the file to the
client but may not withhold delivery of the client file pending payment.
3 (5) If the lawyer provides the original client file to the client, the lawyer may, at no
cost to the client, retain copies of all documents within the lawyer’s file for the lawyer’s
purposes.
(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 at the inception of the representation.
(b) Client file retention and destruction.
(1) A lawyer shall take reasonable steps to maintain the client’s file in paper or
electronic format for five (5) years after the conclusion of the representation in a 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 client.
(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,
by plea or trial, 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.
4 (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 engagements where the fee is
contingent, hourly, fixed, or otherwise based.
[2] At the beginning of representation and in writing, the lawyer should 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 a copy of the client file or
duplicate copies of client file 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.
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Cite as 2019 Ark. 354 SUPREME COURT OF ARKANSAS
Opinion Delivered: November 21, 2019
IN RE AMENDMENT TO RULE 1.19- ARKANSAS RULES OF PROFESSIONAL CONDUCT
PER CURIAM
On December 15, 2016, we adopted Rule 1.19 of the Arkansas Rules of
Professional Conduct, which addresses issues related to the maintenance of a client’s file
and rights and obligations to materials contained in the file. In re Rule 1.19-Arkansas Rules
of Prof’l Conduct, 2016 Ark. 468 (per curiam). The new rule became effective on January 1,
2017. We now adopt minor changes to this rule to ensure that the language in Rule
1.19(b)(3) regarding the notice that must be provided to the client is consistent with
subsection (b)(2). The revised rule is published below, with the changes set forth in “line-
in, line-out” fashion (new material is underlined; deleted material is lined through).
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 paper or electronic
format, that are the product of the lawyer’s representation, including pleadings,
correspondence, and other documents prepared or received by the lawyer in furtherance of
the representation. 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, creation, or obtaining thereof, including such items as
transcripts, depositions, medical records, and reports of experts, shall be provided to the
client as part of the file.
(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
2 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) Items not included in the list of excluded items shall be considered to be part
of the client file to which the client is entitled.
(3) Upon the client’s written request in any format, the lawyer shall surrender the
client’s original file or a copy of the file, in paper or electronic format, to the client. Upon
written authorization of the client, the lawyer shall surrender such file to 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.
(4) The cost of copying the file shall be the responsibility of the client. If the lawyer
has in his or her possession client funds to be reimbursed for such copying cost, 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 of costs of copying of the file to the
client but may not withhold delivery of the client file pending payment.
3 (5) If the lawyer provides the original client file to the client, the lawyer may, at no
cost to the client, retain copies of all documents within the lawyer’s file for the lawyer’s
purposes.
(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 at the inception of the representation.
(b) Client file retention and destruction.
(1) A lawyer shall take reasonable steps to maintain the client’s file in paper or
electronic format for five (5) years after the conclusion of the representation in a 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 client.
(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,
by plea or trial, 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.
4 (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 engagements where the fee is
contingent, hourly, fixed, or otherwise based.
[2] At the beginning of representation and in writing, the lawyer should 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 a copy of the client file or
duplicate copies of client file 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.
5 Although the client file includes the client’s “property,” the lawyer’s obligations with
respect to some client “property” items are distinct and governed by Arkansas Rule of
Professional Conduct 1.15.
[4] 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.
[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
6 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 or legal-service
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-and-
destruction period and policy.