Bar News - March 19, 2010
New Hampshire’s Guidance on Client Records Retention
By: Anne E. Trevethick and Peter G. Beeson
Recognizing that a lawyer in the state does not have an ethical obligation to maintain a client’s entire file indefinitely, the NH Bar Association and the NH Supreme Court have opined on this subject throughout the past three decades. Consistently, these authorities make clear that "in all cases . . . an attorney’s analysis of whether, when, and how to discard a client or former client’s file materials must begin and end with the attorney’s continuing obligation to avoid prejudicing the client’s interests." See NHBA Ethics Committee, Ethical Considerations and the Retention of Client Files, March 18, 1999 [hereinafter "Ethical Considerations"].
This client-centered approach was underscored by the NH Supreme Court decision of Averill v. Cox, 145 N.H. 328 (2000), which ruled that a client’s file belongs to the client and that, upon request, an attorney must provide the client with the file, irrespective of burden. The Supreme Court defined a client "file" broadly to include everything in the file with the exception of materials subject to confidentiality rights of a third party. See id. at 339-40 (declining to "distinguish between an ‘end product,’ [e.g., pleadings filed in court, final contract documents, correspondence] . . . and ‘work product,’ [e.g., attorney drafts and notes]"). The NH Bar Association further expanded this definition in its January, 2006 Ethics Committee Opinion #2005-06/3 by clarifying that, in addition to paper documents, the client file necessarily includes "electronic forms of communications, documents and other records pertaining to the client." NHBA, Ethics Committee Opinion #2005-06/3.
While NH Rule of Professional Conduct 1.15 does not impose a specific time period for storing or destroying these client records, NH Supreme Court Rule 50(2)(B) and NH Rule of Professional Conduct 1.15 provide that an attorney must retain records and materials related to "the handling, maintenance and disposition of all funds and other property of the client at any time in the lawyer’s possession . . . for a period of six years after final distribution of such funds or other property or any portion thereof." N.H. R. Prof. Cond. 1.15; N.H. Sup. Ct. R. 50(2)(B).
In 1997, an amendment was proposed to the NH Rules of Professional Conduct, which would have required the substantive portions of client files, if not delivered to the client, to be retained for at least six years from the date of the last action taken on the file, or beyond any applicable period of statute of limitations on actions – whichever is longer. See Ethical Considerations, supra. This amendment was never adopted. However, bearing in mind the "overriding considerations of confidentiality, proprietary rights, a client’s reasonable expectations, and the lawyer’s duty to avoid foreseeable prejudice to the client’s interests," New Hampshire’s Ethics Committee has noted that "[a] good rule of thumb may be to maintain files for six-to-eight years." NHBA Ethics Committee, Closing a Solo Practice in New Hampshire, May 17, 2007 [hereinafter "Closing a Solo Practice"].
Notwithstanding the above-referenced guidelines, nothing in New Hampshire appears to prohibit attorneys from storing client files electronically or digitally in lieu of retaining hard copies. See Ethical Considerations, supra; NHBA, Ethics Committee Advisory Opinion #1986-87/8. So long as an attorney returns original instruments (e.g., deeds, wills, photographs) or other client property to the client, and maintains the security and confidentiality of the file, electronic storage is generally permitted. See id. If outside providers are used in this process, however, due care must be utilized in selecting the service provider and ensuring that client confidences are maintained. "At a minimum, the attorney should confirm on a regular basis that the outside organization understands and implements its obligations with respect to confidentiality." NHBA, Ethics Committee Formal Opinion #1989-90/2 (also suggesting, but not requiring, the posting of a bond and/or a "contract clause that restricts further dissemination of attorney-client information and grants the lawyer the right to an injunction").
A further consideration that must be kept in mind is the ability of the technology utilized to allow future access. Pursuant to Averill v. Cox, 145 N.H. 328 (2000), if a client requests a copy of his or her file, an attorney has an obligation to provide those records, even if the medium on which it is stored is obsolete or not readily accessible. Accordingly, New Hampshire’s Ethics Committee has advised attorneys storing client records electronically or digitally to "be mindful and sensitive to changes in technology which may impair future accessibility." Ethical Considerations, supra; see also Closing a Solo Practice, supra ("[A] competent technology professional [should be consulted] as to which forms of storage media would be most appropriate and under what conditions the media must be stored. Not all media are created equal and some degrade more quickly than others.").
Finally, although older NH Ethics Committee Opinions do not appear to require attorneys to notify clients of document retention policies under all circumstances, see, e.g., NHBA, Ethics Committee Formal Opinion #1989-90/2, case law and recent articles generally call for clients’ agreement to document destruction and also require an opportunity for clients to retrieve their files. See, e.g., Averill, 145 N.H. at 339-40; Ethical Considerations, supra. What is more, up-front and transparent communication to the client regarding these policies (ideally within the engagement and disengagement letters) not only helps to prevent premature file destruction and prejudice to the client’s interests, but potentially allows attorneys to create innovative, practical and flexible solutions that are in the best interests of everyone involved. See Ethical Considerations, supra.
Anne E. Trevethick and Peter G. Beeson are attorneys with Devine, Millimet & Branch in Concord, NH.