File Retention Guidelines
Rules for Document Retention
By Gina Hendryx, General Counsel
A commonly asked question is how long should I maintain a closed file? Unfortunately, there is no hard and fast answer to this question. Most state ethics committees agree that lawyers are not obligated to keep client files indefinitely. However, most jurisdictions concur that “clients and former clients reasonably expect from their lawyers that valuable and useful information in the lawyer’s files, and not otherwise readily available to the clients, will not be prematurely and carelessly destroyed.” ABA Standing Committee on Ethics and Professional Responsibility, Informal Op. 1384 (1977).
The Oklahoma Rules of Professional Conduct (ORPC) does not provide specific direction or guidelines on the subject of file retention. However, ORPC 1.15(a) does require that complete records of client account funds and other client property be kept for five years after termination of the representation. A good general office policy for file retention would be the five year rule imposed on trust account records. However, the length of time that a file should be retained may depend on the type of case and/or the contents of the file. For example:
- Files pertaining to claims of minors should be maintained until the child is beyond the age of majority and any statutes of limitations have expired.
- Some probate, estate and/or guardianship matters may require an indeterminate retention period.
- Real estate title opinions and title insurance work may require a far more lengthy retention of work product.
- Ultimately, the decision should be based on factors such as statutes of limitations, substantive law, the nature of the particular case and the client’s needs. A lawyer should also consult his or her malpractice carrier for any specific requirements it has on document retention.
WHAT SHOULD I RETAIN FROM A CLIENT’S FILE?
All lawyers and law firms should implement a written file storage, management and retention policy and should follow the policy uniformly. Considerations for the retention policy would include:
- Files will be maintained only for a specified period of time.
- Original documents will be returned to the client upon conclusion of the representation.
- The client may have the file upon expiration of the time period.
- If not retrieved by the client, the file will be destroyed once the time period passes.
- Clients should be sent a closing letter notifying them of their right to take any documents not previously furnished to them and advising them of the date that the file documents will be destroyed.
- The law firm’s file retention policy should be set out in the retainer agreement.
HOW SHOULD I DISPOSE OF A CLIENT’S FILE MATERIAL?
A lawyer must protect a client’s confidences when disposing of file contents. This generally means that the file must be shredded or incinerated. Care should be taken if these tasks are contracted to outside companies. The lawyer should ensure that documents are disposed of without review by the contractor’s employees or others. You should consider retaining an index of destroyed files, copies of your retainer agreement as well as a closing letter or other correspondence which notifies the client of your file retention policy.
With office space at a premium and offsite storage costs ever increasing, a good document retention and destruction policy is a must for today’s practitioner. Uniformity and good common sense should provide answers to most dilemmas that arise.
MAY I STORE FILE MATERIAL ELECTRONICALLY?
There is no requirement that you must maintain a “paper” file. If you have gone to a paperless office or are just trying to cut down on the mountain of paper, it is proper to store file material electronically. The key is to be sure and “back up” your files. It is best to do so offsite. In the case of a computer failure, you will be able to access all electronically stored information.
Originally published in the Oklahoma Bar Journal -- Jan. 15, 2011 -- Vol. 82, No. 2