Oklahoma Bar Journal
A Guide to File Retention and Destruction
By Jimmy Oliver
Every attorney in private practice has been faced with a file cabinet bulging with files related to long-finished matters and past clients. Perhaps more typical these days is an attorney who is faced with unorganized or cluttered electronic files on computers, hard drives or other external servers. Whether the file is paper or digital, an attorney has certain obligations to maintain and properly destroy a client’s file, even when the case is finished. What policies should an attorney have in place to ensure proper file retention and destruction?
The Oklahoma Rules of Professional Conduct do not provide specific instructions about file retention and destruction. However, Rule 1.15(a) requires that complete records of client account funds and other client property be maintained for five years after termination of the representation. Rule 1.15(a) mirrors the American Bar Association’s model rule on the same subject. It would seem a general office rule should be to retain a file for five years, but the length of time to retain a file should take into consideration the type of case and the contents of the file. Consider, for example, the following types of cases:
- Matters involving a minor child
- Estate planning and probate
- Guardianship and adoption matters
- Civil cases where a judgment must be renewed
- Criminal matters where expungement opportunities exist in the future
- Support or custody matter in which children are minors or the support obligation continues
- Corporate records and books
- Intellectual property files
- Real estate title claims and title insurance work
- Documents that would be needed to defend against a malpractice claim or a claim the attorney violated the Rules of Profession Conduct
Many attorneys believe a file should be retained for longer than five years. Ultimately, the length of file retention should be based on the needs of the client and the particulars of each case with consideration of any applicable substantive law or statute of limitations. An attorney should also speak to their malpractice carrier to see if it has any specific file retention obligations.
Every lawyer or firm should have a written file storage, management, retention and destruction policy that is followed consistently. Consider the following when developing a file retention policy:
- The time period a file will be maintained and then destroyed
- Returning original documents to the client immediately after use
- How and at what cost a client may request a copy of the file
- Notification to a client of the file retention policy and the date the file will be destroyed
The file retention process begins when a new client is retained. The employment contract or fee agreement should include a section that notifies the client that their file will eventually be destroyed and the date when that will occur. The client’s signature on the contract will provide consent to destroy the file. If a file will only be kept electronically, the contract should so specify. Best practices would include a brief explanation of how the digital file will be stored and protected.
While representing the client, it is important to send the client all pleadings, correspondence and other documents as they are received. This allows the client to create their personal copy of the file as the attorney creates the copy that will be maintained in the office. Special care should be made to return all original documents to the client as soon as they are no longer needed by the attorney. The client should acknowledge receiving the documents by signing a receipt. Following this step could reduce the need to copy the entire file for the client at a later date. Further, this ensures the file maintained in the office belongs to the attorney and can be disposed of according to office policies.
The next step is when the file is closed. A permeant inventory should be made related to each closed file that includes the date the file is closed, where the file is stored and the date the file will be destroyed. The destruction date should be calendared so the files are destroyed according to schedule. Once the file is closed, the client should be sent a letter notifying them of the specific destruction date for the file. Before a file is closed or put into storage, the attorney should again make sure there are no original documents belonging to the client. This ensures the file that is put in storage can be destroyed immediately on the scheduled date without further investigation.
When the date arrives to destroy the file, an attorney must protect the client’s confidential information that remains in the closed file. Generally, this means the file should be shredded or incinerated. If an outside company is hired to destroy the files, it should be confirmed that the files will be disposed of without being reviewed by employees or other third parties. Many companies will provide a certificate of destruction once the files have been destroyed. Once the files are destroyed, the only things that should remain are the index of destroyed files, a copy of the fee agreement and any correspondence that notified the client of the file retention policy and date of file destruction.
There is no obligation to maintain a paper file. Other than original documents that maintain legal significance, many offices have moved to electronic file storage. An office should have a procedure for how and when documents will be scanned when they are received in the office. When a document is scanned or copied, it should be saved in a searchable PDF format. Ensuring that all documents are searchable from the onset will save time and energy in the future. If necessary, contact an IT professional to make sure the copier automatically saves documents in a searchable format. Office procedures should also be in place about what happens to the documents once they have been saved electronically. If the documents are destroyed in the office, care should be taken so that any confidential information is protected during the process.
Some attorneys adopt a hybrid approach and keep a paper file during the client representation, but once the case is concluded, the file is scanned to be kept electronically. After giving the client notice that the paper file will be destroyed, it is destroyed within a shorter time period and does not necessitate the need to rent a storage unit or other space to hold a vast quantity of closed files.
A backup of digital files should be stored off-site or in a secure cloud-based system. This will ensure the files can still be accessed if there is a system failure or other emergency at the office. Procedures should be put in place to maintain these backup files and ensure they remain up to date. When digital files are closed, they should be organized uniformly and segregated from current files. Having a plan in place for how this will be done will ensure not only that a file can be found when needed but also that the office server does not become unorganized with many years of files. Like paper files, a digital file should be organized by the date of closing and the date the file will be destroyed.
An attorney must still maintain a client’s confidential information in an electronic file. Care should be taken so that this information is not at risk of being compromised. Hackers can target both the devices that store the information and the networks that transmit it. An attorney should confirm that the office servers and electronic data are safe from this type of theft.
Below is sample language to add to a client contract and a closing letter to notify a client of the file destruction date.
FILE RETENTION AND DESTRUCTION POLICY
It is our firm’s general policy to keep a file for ___ years once it is closed. After that time, your file will be destroyed. As your case progresses, you will be provided with pleadings, documents and correspondence as it is received in the office. This will allow you to create a personal file for your own use. The original documents you provided will be returned to you after use or at the end of your matter. When your file is closed, you will be sent a letter notifying you of the date the file held in the office will be destroyed.
RE: Final Statement and File Closure
Dear [client name]:
Enclosed you will find the final statement for the above-referenced matter. If you have any questions about this statement, please contact the office as soon as possible. I have now closed your file and consider my representation of you in this matter completed.
I have also enclosed all original documents that were in your file. If you believe there are additional documents in my possession, please let me know immediately so that I may search for them prior to the file being taken to storage. The file that I maintain related to your matter will be destroyed on or after [insert date]. If you need anything from your file prior to that date, it is important that you notify me in writing about what you need and where it should be sent. Retrieval and copying charges may apply.
It has been my pleasure to represent you in this matter. If you need assistance in the future, do not hesitate to contact me.
ABOUT THE AUTHOR
Jimmy Oliver has more than 10 years of experience in the areas of family law, juvenile law, guardianship and probate. He has served on the OBA Board of Governors and the Professional Responsibility Commission.
Originally published in the Oklahoma Bar Journal – OBJ 94 Vol 4 (April 2023)
Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.