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OBA Ethics Counsel

Ethics Opinion No. 301

Adopted June 16, 1983

INQUIRY

May the files of an attorney (deceased or not) be turned over to a historical or educational institution because the files contain matters of historical significance?

OPINION

No. The files probably contain confidences and secrets of clients which are protected under our Code of Professional Responsibility. If consent is obtained from the client or if the file contained no information that could be properly classified as confidences or secrets as defined in DR 4-101, then they may be turned over to the educational or historical institution.

DISCUSSION

DR 4-101 protects confidences and secrets of clients and defines both a confidence and a secret. As set forth in DR 4-101(A), "'Confidence' refers to information protected by the attorney-client privilege under applicable law, and 'secret' refers to other information gained in the professional relationship that the client has requested to be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client."

The question posed above does not seem to postulate a situation which would allow revelation of confidences or secrets as authorized by DR 4-101(C).

EC 4-6 also bears on the problem at hand in several analogous ways. It reads:

"The obligation of a lawyer to preserve the confidences and secrets of his client continues after the termination of his employment. Thus a lawyer should not attempt to sell a law practice, as a going business because, among other reasons, to do so would involve the disclosure of confidences and secrets. A lawyer should also provide for the protection of the confidences and secrets of his client following the termination of the practice of the lawyer, whether termination is due to death, disability, or retirement. For example, a lawyer might provide for the personal papers of the client to be returned to him and for the papers of the lawyer to be delivered to another lawyer or to be destroyed. In determining the method of disposition, the instructions and wishes of the client should be a dominant consideration."

We have found only one opinion from another entity dealing with this question. This is an opinion of the Committee on Legal Ethics of the Oregon State Bar which was approved by the Board of Governors of that Bar on January 27, 1962. We find no supplement to or reversal of this opinion. It is set forth in its entirety hereinafter:

"Opinion No. 105 Attorney-Client, Confidential Communications and Files

FACTS: An attorney who is about to close his practice desires to give some of his files to an educational institution. The institution says that it can use the files for historical purposes. It states that it is in a position to protect the files and thus to prevent any criticism in regard to confidential communications.

QUESTION: Is it proper for an attorney to give his files to any organization, institution, group, etc. for historical or similar purposes without the consent of the clients involved.

DISCUSSION: A side issue presented is the statement of the educational institution of its ability to protect the files and prevent criticism. This statement should be disregarded, since it is not directly related to the attorney-client relationship, is argumentative and infers a breach relating to the rules on confidential communications.

In the question and situation presented, the attorney would be giving the files without obtaining the authorization of the clients involved. If the files did not contain materials relating to confidential communications, there would be no problem. Here it may be stated that it is felt that most, if not all, an attorney's files contain material on or relating to confidential communications. In any file in which there is material on or relating to confidential communications, an attorney giving the files without the consent of the clients involved would be violating Rule 22 and Rule 27(5) of the Rules of Professional Conduct of the Oregon State Bar and ORS 9.460(5), requiring that an attorney at law maintain inviolate the confidences and, at every peril to himself, preserve the secrets of his clients. It would appear that the attorney here would be in violation of the stated rules if he gave up his files as proposed.

Citations relating to this point are 5 Am.Jur., Attorney and Client, § 661, and the Opinions of Committee on Legal Ethics of the Oregon State Bar Nos. 27, 33, 63, and 68."

In view of the foregoing authority, it seems clear that there is a great danger of exposing the confidences and secrets of a client by the turning over of files to any other entity, whether it be historical, educational, or otherwise. The turning over of the file relating to client A should not be accomplished without the express permission of client A. This is true even though A may be dead or a living former client.