The Singapore Law Gazette

Electronic Archiving, Destruction of Physical Documents, and Requests for Electronic Copies

Introduction

The shift to electronic document management has reduced storage costs and improved file management, but has also prompted questions about the ethical implications of digitising client files:

• Under what circumstances may originals be destroyed after being digitised?
• May legal practitioners charge former clients for providing electronic copies of archived documents?
• Does electronic archiving create a continuing or perpetual obligation to retain or provide archived documents to clients on request?

These questions were recently considered by the AC in a guidance letter concerning the Law Society’s Guidance Note 3.12.1 and Practice Direction 3.12.1. As the AC considered the issues to be of broader interest, an anonymised summary of the guidance is set out below.

The AC’s guidance focused on the ethical considerations arising from electronic archiving and destruction of documents. As with all AC guidance, questions concerning legal ownership of documents, contractual rights and statutory obligations must be assessed separately in the specific circumstances.

Summary of Enquiry

A legal practitioner considering the electronic archiving of completed files sought guidance on:

• whether reasonable charges may be imposed for providing electronic copies of archived documents;
• whether electronic archiving creates an ongoing obligation to provide such documents upon request; and
• when requests for archived documents may be refused.

The legal practitioner also expressed concern that informing clients that documents are electronically archived may create an expectation of continued access to those records. The AC proceeded on the assumption that the documents in question concerned completed retainers and that the legal practitioner was considering destroying the physical documents after converting them into electronic form.

Guidance of the AC

Destruction of Physical Documents Following Electronic Archiving

Where the retainer has been completed, bill paid, and the client does not wish to have the file returned, a legal practitioner may store it on a data storage medium or device (such as a disc or storage drive) and then destroy it: per Practice Direction 3.12.1.

However, where a legal practitioner wishes to store documents electronically and thereafter destroy the originals, the AC observed that the starting point under Practice Direction 3.12.1 and Guidance Note 3.12.1 is the ownership of the documents concerned. This is because original documents belonging to clients or third parties should generally not be destroyed without the owner’s prior written consent.

Before destroying originals following digitisation, legal practitioners should first consider ownership of the documents concerned. Original documents belonging to clients or third parties should generally not be destroyed without the owner’s written consent. Where ownership is uncertain, written permission should be sought or a careful risk assessment undertaken.

Charges for Providing Electronic Copies

Paragraph 7 of Guidance Note 3.12.1 states that when obtaining consent to store documents electronically and destroy originals, a legal practitioner may reserve the right to make a reasonable charge for preparing copies if they are later requested.

The AC considered that the reference in paragraph 7 to “copies” is not confined to physical photocopies and may extend to electronic copies.

However, whether a charge may appropriately be imposed depends on the nature of the document requested and the circumstances of the request. Relevant considerations include:¹The Advisory Committee referred to the Ethics Committee’s earlier guidance which was summarised in a Singapore Law Gazette article titled “Owners, Keepers” (October 2013). The Ethics Committee (the predecessor to the Advisory Committee) recognised that a law practice may generally charge reasonable retrieval, administrative and copying costs for documents belonging to the law practice that it is not otherwise obliged to provide, or for additional copies of documents already given to the client. However, where the law practice is belatedly returning documents that should have been returned at the end of the retainer, such charges would ordinarily be difficult to justify. The Advisory Committee considered the same principles to apply mutatis mutandis to electronically archived documents.

• whether the client is effectively receiving documents that should already have been returned;
• whether the request concerns additional copies or documents retained primarily for the law practice’s own purposes;
• any prior agreement concerning storage or retrieval; and
• whether the proposed charge is reasonable in light of the work involved.

The AC further observed that the ease with which electronic documents may be transmitted does not necessarily mean that compliance with a request is cost-free. Work may still be required to locate, retrieve, review, organise and prepare documents for release. Whether a charge is reasonable will therefore depend on the facts of each case.

As a matter of good practice, legal practitioners should inform former clients in advance if a charge is proposed and, where practicable, obtain agreement as to the basis of the charge.

Whether Electronic Archiving Creates a Perpetual Obligation

The AC distinguished between two related questions: whether electronically archived documents must be retained indefinitely, and whether former clients have a perpetual right to obtain such copies on request.

The AC considered that the answer to both questions is generally no. Electronically archived documents will ordinarily be considered as copies rather than original documents and may therefore be treated differently from originals for the purposes of destruction. While such documents may remain subject to duties of confidentiality and other professional obligations, the mere fact that they have been digitised does not mean that they must be retained indefinitely. Retention obligations will depend on the applicable retention period and any continuing contractual, statutory or ethical obligations. Legal practitioners should also bear in mind the guidance in Practice Direction 3.12.1 that files should generally be retained for at least six years after completion of the matter, subject to review thereafter.

The AC further considered that electronic archiving does not, without more, give former clients a perpetual entitlement to obtain documents on demand. Any continuing obligation to retain or provide access to electronically archived documents will depend on the applicable contractual arrangements, ownership considerations and relevant statutory or ethical duties. The AC therefore considered it prudent for legal practitioners to address retention periods, retrieval rights and any applicable charges when obtaining consent for electronic archiving and destruction. Where retention and destruction policies have been disclosed to clients, there would ordinarily be no need to seek fresh consent before deleting archived electronic copies upon expiry of the applicable retention period, unless some continuing contractual, statutory or ethical obligation remains.

Refusing Requests for Archived Documents

The AC observed that the mere fact that a document remains in a legal practitioner’s electronic archive does not automatically entitle a former client to access it. Whether access must be provided depends on the legal practitioner’s continuing contractual, statutory and ethical obligations. From an ethical perspective, a legal practitioner may be less likely to attract criticism for declining a request where more than six years have elapsed since completion of the matter, the client had consented to digitisation and destruction of the original documents, and no continuing obligation to retain or provide access remains. Each case will nevertheless turn on its own facts.

The AC also emphasised the importance of clear engagement terms. Legal practitioners should, where possible, address document retention, storage, destruction, retrieval rights and any applicable charges at the outset of the retainer, and may consider informing clients that archived electronic documents may themselves be deleted after an appropriate retention period. Clear communication of such arrangements may help reduce future disputes.

Practical Lessons

The AC’s guidance highlights three key lessons:

(a) Electronic archiving is not merely an administrative exercise; legal practitioners should consider document ownership and any consent requirements before destroying originals.

(b) Electronic storage does not prevent legal practitioners from charging reasonable fees for retrieving or providing copies, depending on the client’s entitlement and the nature of the work involved.

(c) Electronic archiving does not create a perpetual obligation to retain documents or provide access. Retention and access remain governed by ownership, contractual, statutory and professional obligations.

Ultimately, clear engagement terms on document retention, destruction, retrieval and related charges can help prevent future disputes.

Note

This article summarises selected aspects of the AC’s guidance for educational purposes. Readers should consult the anonymised guidance letter here and seek specific guidance where required.