I find this article strange - the title is misleading.  Of course
transactional lawyers have to preserve *evidence* - just like everyone
else, according to the FRCP.  But the point of the article is that the
lawyers didn't preserve the *client file* - in the normal course - when it
was just a file and not subject to the duty to preserve in litigation.

It has nothing to do with evidence except for the fact that the lawyers
eventually got sued.  This is an issue of records retention, and more
specifically, whether the Rules of Professional Conduct can compel a lawyer
to consider client files a "record" in the same way a law or regulation
would compel them to identify record content.

I think what the author is saying is that this court is perhaps setting
precedent that the Rules of Professional Conduct carry the same weight as
law with regard to identification, retention and disposition of record
content.

I'm not a lawyer so I won't opine on that, but I will say that in my
experience doing RIM in the legal sector for many years, the point the
author is making is one that is as routine as brushing your teeth.  Lawyers
and law firms (regardless of the practice area - transactional and
litigators) have known of their *ethical* duty to preserve client property
(including the client file, in some form, fashion and amount, varying by
jurisdiction) for ages.  It's not new.  This case simply highlights a
lawyer/firm who didn't do what they reasonably should have done.  The
question is do the RPC hold the same weight as say, the FRCP?  Dunno ...
any real lawyers want to chime in?

Julie

-- 
Julie J. Colgan, CRM

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