14.11 – File Security

Your ethical obligations related to file management don’t end with the duty of competence. You also have a professional obligation to ensure that your client files are secure. Security of your files serves two important ethical duties: the duty of confidentiality and the responsibility to protect and preserve client property.

Confidentiality

Section 3.3-1 of the Code requires you to “at all times hold in strict confidence all information concerning the business and affairs of a client acquired in the course of the professional relationship and [to] not divulge any such information” other than in certain narrow exceptions outlined in the Code. See, for example, s. 3.3-1(a) – (d), 3.3-3A, 3.3-3B, 3.3-4 and 3.3-7.

Preservation of Clients’ Property

As a general rule, your client owns the entire contents of their file. It is their property. Section 3.5-1 of the Code obligates you to care for your client’s property as “a careful and prudent owner would”. Section 3.5-1, Commentary 2 speaks to this duty as it relates to files:

[2] These duties are closely related to those regarding confidential information. A lawyer is responsible for maintaining the safety and confidentiality of the files of the client in the possession of the lawyer and should take all reasonable steps to ensure the privacy and safekeeping of a client’s confidential information. A lawyer should keep the client’s papers and property out of sight as well as out of reach of those not entitled to see them.

Commentary [2] states that you must “take all reasonable steps to ensure the privacy and safekeeping of a client’s confidential information” and speaks to keeping client paper and property “out of sight” and “out of reach”. Case law tells us that we must also store client paper and property in an organized fashion, ensuring that it is clearly identified and kept separately from other documents and property. In Wasylyshen v Law Society of Saskatchewan, 1985 CanLII 2480, 39 Sask R 187, the Court of Appeal for Saskatchewan held that it was conduct unbecoming of a lawyer to allow client documents to become intermixed with personal belongings and to fail to maintain proper records and proper care of client property.