Link to original WordPerfect Document
114 N.J.L.J. 387
October 11, 1984
ADVISORY COMMITTEE ON PROFESSIONAL ETHICS
Appointed by the New Jersey Supreme Court
Confidences And Secrets of
Clients Time Within Which To Retain
We are asked whether or not there is a breach of DR 4-101*
"Preservation of Confidences and Secrets of a Client" where the
attorney for an insured delivers that attorney's closed case file
to his employer (i.e., the insurer) without retaining copies.
Here, upon dismissal, discontinuance, or settlement, the
insured's attorney forwards the entire file to the Claims
Department of the insurer covering the claim. After six months that
Claims Department combines its own file with that of the attorney
and sends both to a central storage facility. Then after three
years all those files are destroyed. The result is that when
insured's attorney is later confronted with a motion to restore the
case, there is no material from which to prepare an appropriate
We first observe that in the situation where an attorney is
employed by an insurance company to represent the interest of the
insured party to an action, that attorney's client is the insured.
See our Opinion 165, 92 N.J.L.J. 831 (1969), and the authorities
* now RPC 1.6
Under the usual indemnity policy, an assured is obligated to
cooperate with the insurance company in the defense of claims made.
As between insurer and the insured, the consequences of destruction
of a claims file will depend upon the contractual obligations
incurred between these parties.
Since the insured is the client, it would be improper,
however, to disclose to the insurer information obtained from the
client in the course of preparing the case for defense unless that
information was relevant to the issues in the defense and
disclosure was required under the contract obligation.
DR 4-101* deals with preserving clients' secrets from
unauthorized disclosure, as distinguished from the obligation of
protection and accountability under DR 9-102(B)(3)**. Where a file
contains information or records unrelated to the claims issues, the
above two rules are satisfied by returning the items directly to
client or otherwise disposing of them with the client's permission.
In the present inquiry, we find no impropriety in the practice
stated, provided the returned file contains no client's secrets or
confidences unrelated to the issues in question and not subject to
disclosure to the insurer under the policy.
* now RPC 1.6 ** now RPC 1.15(a)
* * *
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