File Retention and Destruction Protocol
At the conclusion of a representation, generally, the first action taken on the file will be to close it in preparation of transferring to storage. At this time the responsible lawyer shall:
- Ascertain conclusively that the lawyer’s representation is unambiguously concluded, evidenced by the firm’s Closing Letter stating that the representation is concluded.
- Depending on the type of representation, additional review should be engaged in before forwarding a file for storage. For example:
- In litigated matters, there should be a satisfaction of judgment or a final dismissal of the matter through settlement, exhaustion of appeals, or abandonment thereof;
- In a bankruptcy representation there should be a discharge or debtor payment of claims or discharge of the trustee or receiver;
- A dissolution representation file should have a final judgment or dismissal;
- A final judgment or dismissal of action should be in a the file in tort actions.
- Any document originally created electronically and maintained in electronic form thereafter (for example, e-mails), is part of the file. The firm’s computers should be scanned to ascertain whether a particular file contains such documents. If such documents are found they should be (pick one of the following options) [Printed to hard copy and placed in the file] [Segregated to an electronic file and maintained for the retention time period determined for that client’s file generally].
- There should be a determination of all fee balances and the intended resolution as to any unpaid balances;
- If money was placed in a trust account during the representation, there should be a final accounting of all such proceeds;
- Items in the file of intrinsic value should be noted at this time, and a determination made of whether such items are appropriately held in storage with the file, or should be immediately forwarded to the client. Items with intrinsic value may never be destroyed, even if the client consents to the destruction of the file generally, or upon abandonment of the file pursuant to Rule 1.15(h). Examples of items with intrinsic value include, but are not limited to, original wills, stock certificates, deeds, and/or any document that is evidence of a client’s interest in money or property;
- During this review, items in the file that the lawyer knows can be recovered from another source, may, in the lawyer’s discretion, be removed and destroyed. (NB: Notes in the file consisting of an attorney’s impressions, thoughts, and comments about the case are part of the file and may not be destroyed, see Informal Opinion 980141.) A record should be made of these items so they can be recovered and replaced in the file in the event the client requests the file prior to destruction. Examples of these items are:
- Copies of documents previously filed with the court;
- Copies of legal opinions;
- Depositions otherwise available in electronic form;
- Miscellaneous office supplies.
- If the lawyer has previously sent the client a copy of a document, the copy may serve as that portion of a client’s file:
- If an explanation has been given to the client of this process prior to sending the copy, and
- Because the original file belongs to the client, if there is an original in the file, a copy does not fulfill the obligation to the client unless the attorney and client have agreed that it will.
- If both conditions are not met, attorney should provide the file to the client and keep copies at Attorney’s own expense.
File storage should be done in a manner that ensures the confidentiality of the client’s information and the physical integrity of the file.
When a file is being transferred to the client or transferred, per client’s instructions, to a third-party, such as another lawyer or law firm, all of the above steps should be followed, with the exception of Item 6. Further, the firm’s Closing Letter should specifically clarify the circumstances under which the file is being transferred.
If not returned to the client, original documents, property furnished to the lawyer by the client, and items of intrinsic value must be retained by the lawyer and cannot be discarded or destroyed without the client’s consent.
The lawyer retaining any of the client’s papers and property shall avoid reasonably foreseeable prejudice to a former client.
File Destruction Policy
Files will be maintained for a minimum period of ten years from the conclusion of the representation. However, it may be appropriate in some circumstances to maintain our clients’ files for a longer period of time to protect both the law firm’s and client’s interests. A client file shall not be destroyed without the review and approval of the responsible attorney in the representation, or if that lawyer is unavailable, a lawyer designated by law firm management, even in circumstances where the client file is being destroyed pursuant to the ten year safe harbor provision of Rule 4-1.15(h). The reviewing lawyer shall consider all relevant factors that bear on the appropriateness of file destruction, including, but not limited to:
- Whether the statute of limitations for legal malpractice has run, or has been tolled.
To know whether the action has been tolled in any particular situation requires the application of the discreet facts of the case to the law on tolling a statute of limitations;
- If the representation was of a minor client, has the client reached majority age at the time of review;
- Whether client expressed dissatisfaction with the representation or outcome;
- Whether there remains an unsatisfied judgment that cannot be renewed. The file should be maintained until such time as a malpractice action could no longer be brought after the date for renewal expires;
- If minor children were tangentially involved a file shall not be destroyed until all such children reach majority age, plus the extinguishment of their rights to a malpractice action;
- In a dissolution representation, a file shall be maintained so long as there are any acts left to be executed by any party, and during the pendency of an award of spousal maintenance or child support;
- When there is a structured settlement, the file shall be maintained until all payments are made;
- In collections cases, the file shall be maintained until the judgment is paid or until renewal of the judgment is no longer viable, plus the time for bringing a malpractice action;
- In criminal representations, the file shall be maintained for the longer of either:
- the length of incarceration and/or parole, or the satisfaction by the client of any alternative sentence, such as Community Service, fines, disgorgement restitution, SES or SIS, or
- the period of time for bringing a malpractice action;
- In Corporate representations, the file shall be maintained for the life of the corporation plus the period of time for bringing a malpractice action;
- In Estate planning, estate administration and probate matters, the file shall be maintained until the resolution of the final accounting plus the time period for bringing a malpractice action;
- In Trust administration matters, the file shall be maintained until all operative trust clauses are exhausted, plus the time period for bringing a malpractice action;
- Explicit confirmation that none of the conditions requiring continued maintenance of the file, as set out in Rule 4-1.15(h)(1-4), are present, even in circumstances where destruction is pursuant to an agreement between the lawyer and the client.
In civil matters, absent an agreement to the contrary, other client materials and property may only be destroyed after the lawyer uses reasonable means to notify the client of their intended destruction and gives the client a reasonable time to respond. If we have advised the client of our file retention period at the inception of the representation, as recommended above, notification to the client is not needed at the time of destruction.
If we have not previously obtained the client’s consent to the destruction of the file at the time of destruction, the file shall not be destroyed until the requirements of Rule 4-1.15(h) have been met, and the file has been reviewed by the responsible attorney in the representation according to the provisions of the File Destruction Policy.
If a client cannot be located or fails to respond to reasonable notice of intended destruction of the file, the lawyer may destroy items whose retention is not required by law and is not necessary to avoid reasonably foreseeable prejudice to the client. Items that the lawyer believes are reasonably necessary to the representation may be preserved in electronic form only, unless the lawyer believes the loss of physical copies will prejudice the rights of the client.
In closed criminal matters, absent an agreement to the contrary, client files should not be destroyed without a client’s express consent while the client is alive. Trial counsel shall retain a copy of a client’s files for the term of imprisonment where the client is convicted of a serious or violent felony resulting in a sentence of 15 years or more. (See California Penal Code section 1054.9(g))
Absent a contrary agreement or client consent, a lawyer should retain the files for the life of the client considering that files relating to criminal matters may have future vitality even without a conviction, and even after judgment, sentence, and appeals.
The contents of the closed files in criminal matters may be retained in electronic form if every item is digitally copied and preserved, unless retention of the physical item is required by law or the item, by its nature, requires preservation in physical form, i.e., physical evidence.
After the destruction of the file, the law firm shall maintain records of:
- The file’s opening and closing;
- The date of the conclusion or termination of the representation;
- Whether the file was destroyed pursuant to an agreement with the client or Rule 4-1.15;
- If destruction was pursuant to an agreement with the client, a copy of the communication (Engagement Letter/Fee Agreement or other written document) notifying the client of the retention/destruction policy, and the client’s consent thereto, if required;
- The date of destruction;
- The attorney that authorized the destruction.