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Must You Keep Client Files Forever?

One of the many challenges law offices and organizations have is finding enough room to physically store client files (especially closed files). However, no organization can store closed client files indefinitely. In fact, one of my first tasks as an attorney was to find out how long we needed to physically retain our client files, according to state law. One would think the answer was simple: X number of years. It actually wasn’t.

How long should you retain a client file in which you no longer represent the client?

A great starting place is the ABA Model Rules of Professional Conduct (MRPC). You can read the ABA’s article on client retention here. For the most part, with the exception of California, all other states have adopted the ABA’s MRPC in some form. Rule 1.15(a) of the MRPC states, in part, “Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of [five years] after termination of the representation.” The key, though, is to determine how your state has deviated from MRPC Rule 1.15(a), if at all. Some states have revised this rule and increased the period from five to six, or seven years. Other states have imposed other considerations that must also be factored, including how and when to purge closed client files, and what files can be purged and what files should be saved. If you are preparing (or revising) a client file retention policy for your organization, consider the following:

Determining Length of Time

  • When determining the period of time to retain a file, does it accrue from the date representation ends, after “distribution,” or after an “event was recorded?”
  • Does your state mandate a minimum number of years?
  • Does the law treat client file retention differently if your client is a minor? Must you save files until after your client turns 18?  Or beyond?
  • Does your malpractice insurance carrier require a minimum amount of time for client file retention?
  • Must you communicate the retention period to your client in advance by including it in your fee agreement? Are you required to do so by state ethics requirements? If not, is it a good policy to do so?

Determining File “Type”

  • Between original documents and copies, is there a difference in how you notify your client?
  • What if your client is notified, but fails to respond? How long must you wait before you take action? May you then dispose of the file after no response from the client?
  • Are there certain standards of consideration when determining what “file type” may be destroyed? For example, are criminal documents treated differently than estate documents?
  • Are your notes considered part of your client’s file belonging to the client?
  • What if client files were stored electronically? May attorneys dispose of the paper files after all documents have been scanned electronically? Would a client’s permission need to be obtained first before hard copies were destroyed?

Determining Methods of Destruction

  • Does an attorney always have to decide if a file may be destroyed, or can a manager make that decision?
  • May files be tossed for recycling or must they be shredded?
  • Who should enforce the policy of when documents are to be destroyed?

Determining Method of Payments

  • Can you charge clients for photocopying and sending them their records? If they don’t pay for the costs, can you place a lien on their account?
  • Can you charge clients for returning original documents to them?

With the rise in storage costs and the hassle of physically moving files back and forth, most attorneys, especially in immigration, have adopted green-policies within their organizations. By using electronic case management systems, immigration law firms and organizations find they are printing less paper, scanning more documents, and notifying their clients much more efficiently. How about your organization? Where do you fall in this spectrum? Have you gone paperless by using an electronic case management software?  Send me your comments!