Cleaning out client files can be a tedious and intimidating process for an attorney, particularly if he/she is not aware of the ethical responsibilities involved. An attorney has the duty to protect the client’s identity, as well as the identity of every third party involved with a case (California Rules of Professional Conduct Rule 3-100). After reading Hoarders: Cleaning Out the Client Clutter, by George C. Cunningham in the July/August 2012 issue of the GPSOLO, we wanted to share a few valuable lessons on what attorneys should and should not be doing when it comes to cleaning their backlog of closed files.
In his article, Mr. Cunningham addresses how to properly close out client case files. However, it is important to note that each state may have its own rules specifying an allotted time to retain records. And each state may identify specific records that need to be kept indefinitely, such as estate planning documents. However, the main thrust is that a majority of the documents an attorney obtains from the client typically belong to the client. And the attorney must take the steps to ensure that the client is be given the opportunity to reacquire them. These documents include originals of certificates, client notes, and any attorney work product that the client paid for. Documents that are returned to the client should be redacted of third party information.
If the attorney-client relationship is being terminated, but the case is still active, the former attorney must undertake a good faith effort to get the documents to the client or the new counsel, in a manner timely enough “to protect the client’s interest” (Model Rule 1.16 (d) from the Materials on Client Retention). A good faith effort might include using the last known contact information of the client, a phone call, email, and/or the sending of a letter via U.S. mail. An attorney might also attempt to find the client via the Internet, or even consider placing an ad in the legal listing of a major local newspaper. However, the hiring of a private investigator is probably in excess of “good faith.” The attorney should also document all attempts to contact the client including when and how.
In the event that a case has been closed, the ABA has issued an opinion (ABA Informal OP. 1384) that provides 8 considerations for destroying documents. Mr. Cunningham proposes using the state’s statute of limitations as the minimum time to retain files. Below, please find our own recommendations.
California File Closing and Retention
First, it is worth noting that there are few brightline rules in California. The research materials found and expert opinions were merely opinions and preferences. Ultimately, these decisions are up to each individual attorney or law firm and subject to any agreements the attorney or firm has with its clients.
Second, as strange as it may seem, there is no technical definition of when a file becomes “closed.” From a common sense standpoint, a file can be considered closed when the underlying matter has been settled, when there has been a final court judgment or when there is a decision from an administrative hearing. A closing letter solidifies the status of a file as “closed.” Obviously, if you plan to appeal or know that an appeal is likely, the file should not be considered “closed.”
Third, there is no rule regulating how long an attorney must keep closed files in the office prior to sending them to offsite storage. A North Carolina bar opinion advised that closed files be kept physically in the attorney’s office for a one-year review period. This might make sense from a practical standpoint, but according to the California rules and ethics opinions, there is no such recommendation or requirement we can send closed files to storage the minute they become “closed.”
If they are stored offsite, they should be kept in a secure, dry location protected from prying eyes and the elements. In the event the law firm receives or obtains misplaced or additional documents belonging to a closed file, it can temporarily keep these documents in its office. At some point, the firm should ensure that these additional documents are placed with the proper stored file, but there is no rush. In other words, one does not need to immediately retrieve stored files if/when this scenario occurs.
If a client’s file becomes active again, however, the attorney or law firm should retrieve the file from offsite storage.
Destroying Client Files
For almost all civil matters, the industry standard is five (5) years after closing. There are certain exceptions, such as for probate matters, cases involving minors and others lacking legal capacity, corporate issues, and a few others. In general however, five years’ retention after closing is sufficient. Sometime prior to destruction, we should notify the client of our intention and allow a reasonable time (anywhere from 30-90 days) for the client to obtain copies of the file, if he/she wishes to do so. If we are not able to contact the client after reasonable attempts, we can go ahead and destroy the files (except for originals and those with “intrinsic value”).
For criminal cases, the current standard is to keep files for the lifetime of the client. The reason for this is due to laws such as “Three Strikes,” which may require the use of client files far down the road. We should not destroy criminal case files without client approval, regardless of how long the case has been closed.
Shredding and incineration are the recommended destruction methods.
What About Electronic Files?
Electronic files should be treated similarly to physical files. Transmissions should be encrypted, and computers protected by firewalls. Although the firm and attorney should do its utmost to protect electronic confidentiality, there is no need, for example, to hire outside parties to ensure that all traces of a client’s file have been removed from our system. The industry standard is to simply delete the files from any hard drives.
The firm and attorney should properly label and segregate closed files and ensure that electronic files can be reproduced on paper when necessary.
For the attorney’s and law firm’s protection, there should be a clearly stated File Retention/Destruction Policy. This policy should be discussed in the Attorney-Client Fee Agreement and referenced in the File Closing letter to the client.
Furthermore, the attorney and law firm must ensure that the retention/destruction policy is being followed. This is checking to ensure that any original documents are sent back to the client, remaining documents are appropriately destroyed, and that full privacy protection is being afforded to the client and third parties. Paper documents should be shredded, electronic files should be completely deleted, and the attorney should document which files have been either returned to the client or destroyed.