A Twitter follower noted that natural follow-up to yesterday’s blog is one that addresses file retention. How long must a lawyer keep a closed file?
It’s a common question. To paraphrase another Irish guy, it’s not uncommon for me to hear a frustrated lawyer say something like:
- I can’t believe the files in here. I can’t close my eyes and make them disappear! How long? How long must I sing this song? How long? How lonnnnnnnggggg……?
I’ll cut to the chase: I don’t have a good answer for you. I’ll do my best. But, I won’t be offended if you finish this post frustrated that you still haven’t found what you’re looking for.
Again, as I stressed yesterday, Rule 1.16(d) makes it clear that the duty to deliver the file kicks in upon the termination of the representation. Delivering it moots the question of how long to keep it. Of course, you’d be well-served to keep a copy for yourself, if only to defend against a potential disciplinary complaint or malpractice claim.
Once delivered, the only retention requirement in the rules appears in Rule 1.15(a)(1): records of funds & property must be maintained for 6 years from the termination of a representation. The file is client property. Thus, some jurisdictions have interpreted the rule to require lawyers to maintain a record of what happened to client files. Even if not affirmatively required by the rule, keeping a disposition log is a good idea.
Now the hard part: what about the file that, for whatever reason, isn’t delivered upon the termination of the representation?
That’s a question that we haven’t answered.
Twenty years ago, the VBA’s Professional Responsibility Committee issued advisory opinion 97-08. Here’s the synopsis:
- “A lawyer must exercise discretion in determining the necessary length of time for the subsequent retention or disposition of a client’s file. The contents of certain files may indicate the need for a longer retention period than do the contents of files of similar age based on their relevance and materiality to situations which may foreseeably arise. Moreover, in disposing of a client’s files, a lawyer should protect the confidentiality of its contents. If possible, notice may be given the client as to the date of disposition, affording the client the opportunity to take possession of all
or part of the material in the file.”
The VBA Opinion is consistent with the general consensus that “it depends.” Three years ago, the Kentucky Bar Association’s Legal Ethics Opinion 15-01, noted that the prevailing view is that a reasonable period to retain a file is between 5 and 10 years.
I understand that one-size doesn’t fit all and that, with closed client files, “it depends.” Still, I’d like to provide relief to lawyers who’ve run out of physical & electronic storage space, or who simply can’t afford to maintain it any longer.
As I mentioned yesterday, I’ve asked the Professional Responsibility Board to consider a rule that would define “the file.” The same rule would authorize lawyers to destroy files after 6 years, subject to certain exceptions. The rule that the Board is considering is quite similar to this rule that was proposed last year in Massachusetts.
Until then, here are two things that I think are critical:
- If you haven’t already done so, build a retention policy into your standard representation agreement; and,
- Check with your carrier before destroying or disposing of a closed file.
Aside: real estate lawyers, #2 includes checking with your title insurer.
Finally, and as critical as the two thoughts expressed above, whether you pick a 6, 7, or 10-year retention policy, remember that there are some things that should never be destroyed, or that should be retained beyond your standard retention period. Some (non-exhaustive) examples:
- documents provided by the client;
- anything that it’s reasonable to conclude the client might need;
- files with original wills, deeds, trust documents, and estate planning documents;
- criminal files;
- files with pre-nups,
- files for clients who had young children when support & custody were finalized;
- files for which the statute of limitations on malpractice has yet to run;
- files in which the client was a minor, and will remain a minor beyond the expiration of your file retention period;
- adoption files;
- Corporate books & records.
This list goes on.
I don’t want to make this blog too long. If you have questions about file retention, call me. If you want me to come meet with you and others at your firm, I will. Until then, a few closing thoughts:
- generally, it’s okay to store closed files electronically;
- when disposing of or destroying files, do so in a manner that competently maintains the confidentiality of the client’s information.
Some other resources:
- The ABA Center for Professional Responsibility: Materials on File Retention
- ALPS: How long do we need to keep our closed files?
- Minnesota Lawyers Mutual: File Retention: A Malpractice Insurance Company’s Perspective
- The Virginia State Bar: The Monster Called File Retention