ISBA Ethics Opinions by IRPC Rule 1.15

A lawyer may not produce banking records, client trust account records, ledger and client billing records requested by spouse’s lawyer in a pending divorce between lawyer and spouse, absent a court order. In the event of a court order ordering the production of the documents, the lawyer may reveal information only to the extent reasonably necessary to comply with the order and should seek protective action when appropriate.

A lawyer may accept payment for earned services and expenses by credit card, but any security retainers paid by credit card must be deposited directly into the lawyer’s trust account. A lawyer accepting credit card payments for both earned fees and security retainers should designate two accounts – one a business account, and a one a trust account – to receive the payments. Further, given the complexity of the rules implicated by credit card payments, a lawyer must obtain a thorough understanding of the agreement he or she will sign with the credit card company before accepting credit card payments. Also, the Rules of Professional Conduct do not prohibit a lawyer from charging a service fee to a client when the client uses a credit card, so long as the fee is reasonable and disclosed in advance to the client, preferably in writing.

A lawyer must maintain records that identify the name and last known address of each client, and reflect whether the client’s representation is active or concluded, for an indefinite period of time. A lawyer must keep complete records of trust account funds and other property of clients or third parties held by the lawyer and must preserve such records for at least seven years after termination of the representation. A lawyer must also maintain all financial records related to the lawyer’s practice for not less than seven years. For other materials, if appropriate steps are taken to return or preserve actual client property or items with intrinsic value, then it is generally permissible for a legal services program to dispose of routine case file materials five years after case closing. Other considerations, such as administrative expense and the six-year Illinois statute of repose, suggest a general retention period for most lawyers of at least seven years. Any method of disposal must protect the confidentiality of client information.

A lawyer who, without notice of the inadvertent transmission, receives and reviews an opposing party’s confidential materials through the error or inadvertence of opposing counsel, may use information in such materials. A lawyer who knows of an inadvertent transmission before confidential materials of an opposing party have been opened and reviewed should return such materials without examination. A lawyer has a duty to advise a client that confidential information was inadvertently transmitted to and read by opposing counsel.

Upon termination of representation, a lawyer is required to return all papers and property received from the client, but may retain copies at the lawyer's expense. If the client requests copies of other parts of the lawyer's file, the lawyer should make copies of those materials in the lawyer's file to which the client is entitled to access available at the client's expense.

Where client has disappeared or cannot be located it is improper for a lawyer to settle his case, sign a settlement draft, or deduct fee without authority from the client; power of attorney to settle in retainer agreement must be narrowly drawn.