Many people box up old files, put them in storage, and hope they never see them again. Attorneys, however, should store client files in a way that would be easy to retrieve if called upon to do so. Further, attorneys have a duty to maintain and dispose of client files in a manner consistent with our ethical guidelines.
RPC 209 provides that the original file belongs to the client and, because an attorney has a duty to safeguard the property of a client, the client files must be stored in a secure place. Closed client files can be destroyed anytime with client consent or after a six year period from the conclusion of the representation. Keep in mind some situations may require that the attorney retain the file or a portion of the file for a longer period. For example, in destroying files, attorneys should not destroy (1) property which actually belongs to the client, (2) information useful in the assertion or defense of a client’s position in a matter for which the statute of limitations has not expired, or (3) original documents of independent legal significance such as an original will or stock certificate (which must be maintained indefinitely or returned to the client).
Some useful points when preparing client files for disposal:
- Keep a running list of the file name, the closure date, and the date it may be destroyed.
- For hard files, group files together in a box that may be destroyed at the same time. Label the box with a number and a list of the files contained in it.
- For electronic files, off-load files in a secure place and indicate when they may be deleted.
- Review the file before closing or placing in storage and gather any property belonging to the client. The property should be either returned to the client or retained until the items are deemed abandoned and escheat to the state under Chapter 116B. RPC 209
- Make note of any applicable statute of limitations on the file that runs longer than the six-year file retention requirement.
- After six years, the lawyer is not required to notify the client, and the file can be destroyed, subject to the above three exceptions.
- The Rules do not provide for any particular method for destroying client files; however, the method must preserve client confidentiality.
- A record of all destroyed client files should be maintained indefinitely. See RPC 209.
A little work to organize and prepare closed files for disposal on the front end will save you lots of time and energy on the back end when it comes time to dispose of the files.