Are the filing cabinets at your firm filled to capacity? Is the closed file storeroom (aka dungeon) bursting at the seams with over-stuffed Bankers Boxes? Is the cost of offsite storage playing havoc with the budget?
It may be time to re-think your firm’s closed file policy. Transitioning from paper files to digital files may be the answer – destroying files may be another. There are ethical considerations for both and they vary from jurisdiction to jurisdiction.
It is the general consensus, though, that every law firm must have a file closure and destruction policy that is in writing, understood by all employees, and followed at all times.
As with everything legal, there are ethical duties to be considered when you close or destroy client files. For purposes of this article, discussion focuses on the American Bar Association’s Model Rules. They include:
Rule 1.6 Confidentiality of Information
Rule 1.15 Safekeeping Property
Before tackling the Model Rules, please note the following excerpts from ABA Informal Opinion 1384 ‘Disposition of a Lawyer’s Closed or Dormant Files Relating to Representation of or Services to Clients’:
- A lawyer does not have a general duty to preserve all of his files permanently.
- Clients and former clients reasonably expect from their lawyers that valuable and useful information…will not be prematurely and carelessly destroyed…
Model Rule 1.6 Confidentiality of Information states that a lawyer may not reveal information related to the representation of a client unless the client gives informed consent. It is for this reason that the client’s files cannot be unceremoniously dumped in the trash. Instead, the lawyer must take steps to shred or burn the file contents.
Model Rule 1.15 Safekeeping Property states that the lawyer shall hold property of clients or third persons in a lawyer’s possession in connection with a representation separate from the lawyer’s own property. Valuable client property must be promptly delivered to a former client or safeguarded indefinitely. The best practice is to return this property at the time the file is closed. It MUST be returned before the file is destroyed. This includes all original documents such as notes, mortgages, estate planning documents, and other personal property.
If any unrecorded documents are discovered at the time the file is closed, the lawyer should take immediate steps to correct this oversight.
The client’s property should be returned when representation is terminated because this will be the time when it is easiest to locate the client. This may not be simple five, ten or fifteen years down the road. If the client cannot be located and the property cannot be returned, it must be kept indefinitely.
Rule 1.15(a) states that records of trust account funds must be kept for five years. This time period varies from state to state.
Note that Model Rule 1.16(d) Declining or Terminating Representation also applies here.
The time to obtain the client’s consent regarding the destruction of the client’s file is at the beginning of representation. The firm’s policy should be clearly stated in the engagement letter and it should be signed by the client. It would be best if engagement letters were kept in a separate location from the clients’ files so that there would be a permanent record of consent.
The time to prepare for the destruction of the file is when it is actually closed. At this time, the lawyer or an experienced paralegal should review the file and draft a memo noting the review has taken place. The paralegal can also be sure that all client property has been returned and, if necessary, obtain a receipt for the property. The date for destroying the file should be logged. If this is all done properly, no further review should be required at the time the file is destroyed. By following this policy, a great deal of time will be saved. It is not fun…and it is also time consuming…to review a nasty thirty-year-old file.
Some files should never be destroyed. This would include information the lawyer knows may be necessary for the assertion or defense of the client’s position when the statutory limitations period has not expired. The lawyer may also want to keep a file that would help with similar matters in his practice or assist the lawyer if the client should allege malpractice or professional misconduct in the future. Some states require that files related to issues involving minors not be destroyed.
A closed file log should be maintained. This log should also indicate when the file is destroyed. This information should be kept indefinitely.
Conversion of files to electronic format is an option. However, Model Rule 1.15 still applies and the attorney must preserve original documents that were provided for safekeeping. In addition, the file may have to be turned over to the client at some time in the future so old versions of software may have to be maintained to be sure that the electronic records may be accessed or printed.
Your challenge: The rules for closing and/or destroying client files vary from state to state. Be sure to review your state’s Model Rules and ethics opinions regarding this issue. Then determine if your firm has a policy that sets forth its procedure for closing and destroying files. If it does, be sure the policy is followed by all employees. If it does not, take an active part in drafting that policy and putting the procedure in place. This is an important issue and one in which a paralegal can play a vital role.