By Olumide Babalola
After my presentation at the Lagos bar’s knowledge sharing session on the 12th day of September 2021, I got many calls from seniors and colleagues for me to ‘fleshen-up’ my power point slides and it is in my respectful answer to the requests that I have penned down this article on a very important but widely neglected issue in Law Firms’ information management. To start with, my Law Firm did not even have a Clients’ data retention policy until this article, so I am as culpable as many Nigerian lawyers in this respect. Perhaps, we need to stop waiting on the regulators and start micro-managing our law practice on some professionally unregulated matters. Data protection is one of such.
I spoke on a number of data protection and information security issues but this article is particularly fixated on retention of clients’ personal data and/or files along the line of clients’ file ownership, retention period, and record deletion modalities. My intervention is advisedly opinionated especially since the Legal Practitioners Act (LPA) and Rules of Professional Conduct (RPC) are not very helpful in this regard and I am happy to have further perspectives to my position here.
Who owns the Client’s file?
Neither the LPA nor RPC makes provision on ownership of (original) files generated pursuant to a client’s instruction and this has contributed to the unsettled state of our law practice especially as it appears the, with respect, outdated rules are only targeted at litigation lawyers. Many real-time questions continue to arise in this regard. For example, who owns the original documents? who owns the lawyers’ notes and records of proceedings? who owns the lawyer’s strategy notes on the client’s matter?. Even in other jurisdictions, these questions do not have clear cut answers. In the United States, although the word ‘property’ is not defined, rule 1.15 American Bar Association (ABA) Model Rules of Professional Conduct alludes to the complete records as clients’ property even though John Allen, the chairman of the Standing Committee on Professional and Judicial Ethics of the State Bar of Michigan opines that a lawyer’s note and other documents generated by the lawyer may not fall into the category of the client’s property. (See Allen, John W., “Focus on Professional Responsibility – Ownership of Lawyer’s Files About Client Representations; Who Gets the ‘Original’? Who Pays for the Copies?” Michigan Bar Journal 79 (2000): 1062–65). In the same vein, Robert Clifford categorically asserts that clients do not own lawyers notes and internal writings. (Clifford, Robert A, “Who Owns Notes and Reports?” Chicago Lawyer (August 1998): 8). Ultimately, Daniel Skupsky controversially pontificates that, ‘materials’ in a case file belongs to the lawyer but not the client. (Skupsky, Donald S., “Who Owns the File – The Attorney or the Client?” Law Office Administrator 7 (August 1998): 6–7). In the United Kingdom, the Law Society advises that, ownership of client’s file depends on the capacity in which the lawyer acted and circumstances surrounding creation of the document. For example, the Firm owns documents prepared to enable it do its job, file copies of letters written to the client, drafts and working papers, internal communications created during the retainer, communications written by the client to the firm etc. (See The Law Society, ‘Ownership of documents’ https://www.lawsociety.org.uk/en/topics/client-care/ownership-of-documents)
However in Nigeria although we do not have a clear cut regulatory directive on ownership of files after conclusion of instruction, rule 29(3)(a) and (b) RPC provides that where in a litigious matter, a client changes his lawyer, the former is entitled to: (i) all letters written by the lawyer to other persons at the direction of the client; (ii) copies of letters written by the lawyer to other persons at the direction of the client; (iii) drafts and copies made in the course of business, and (iv) documents prepared from such drafts; and the lawyer is entitled to: (i) all letters written by the client to the lawyer; (ii) copies of letters addressed by the lawyer to the client; (iii) lien on the papers or documents of his client in respect of unpaid fees.
From the foregoing, it is clear that what the rule covers is strictly a situation of change of counsel, what then happens where the counsel is not changed?. Regardless of the unwritten rules and customs, it is my respectful view that, even though lawyers draft and prepare court processes or other documents in a client’s file, ownership of such files prima-facie resides in the clients even where the matter is handled pro bono except an agreement exists to the contrary. I must however quickly point out that, copyright attracts a different consideration all-together.
For how long should Nigerian lawyers retain their clients file after cessation of service?
Again, the LPA and RPC do not provide for retention period for client’s files except where the lawyer is exercising lien on them in respect of unpaid fees(see Rule 29(3)(b)(iii) RPC). While the ABA Model rules provide a period of five years after termination of service, the Law Society in the United Kingdom leaves it at the discretion of every Law Firm to set a reasonable retention period and in Canada, the Law Society Act prescribes 10 years and 6 years retention period for certain documents and he may even keep it indefinitely for future use subject to an agreement with the client. (https://lso.ca/lawyers/practice-supports-and-resources/topics/managing-files/file-retention-and-destruction>). However, unfortunately, the International Bar Association missed an opportunity to lead the way in this respect when it omitted to make a definitive statement on the ideal or advisable period for retention of clients’ record in its publication titled “The IBA African Regional Forum Data Protection/Privacy Guide for Lawyers in Africa” (See https://www.ibanet.org/Africa-IBA-releases-data-protection-guide-for-African-lawyers).
From the American, English and Canadian experiences, it is the bar that ideally regulates retention period for clients’ files, hence the Nigerian Bar Association ought to rise to this occasion and provide some guidance. Nevertheless, while waiting for the bar to act in this regard, it is advised that Law Firms should draw up their clients’ record retention schedule/policies to reflect the peculiarities of each case but a period of between five to six years should be reasonable. There is also the issue of cloud storage which gives an idea of indefinite retention of clients’ data in a digital or electronic form. Here, Law Firms must be able to justify the necessity for retaining such files indefinitely, otherwise they may be in violation of data protection laws especially where they provide services to foreign residents.
Deletion considerations. Every client’s data retention policy must necessarily provide for deletion period and method. It must answer questions relating to deletion of manual and/or electronic records, how the deletion is done? by who? and when?. For some clients, they expect complete deletion of all records retained by the lawyer but others are indifferent, however the Law Firm must have its own policies on retention of files as well as the identification of the legal basis for such retention.
Lawyers’ clients, like very other consumers, have expectation of privacy over their dealings with the lawyer, hence the latter’s retention of the former’s record after cessation of service must either be in accordance with a relevant regulation or a data retention policy which must clearly state the legal basis and period of retention, storage mechanism and deletion modalities. Nigerian Law Firms does not have proper guidance on retention of clients record, hence, it is advisable for each Firm to draft its retention policies in consideration of the peculiarity of each client and relevant data protection laws per relevant jurisdiction especially for Law Firms with cross border transactions.