Ethics Committee Practical Ethics Article
By the NHBA Ethics Committee
Presented to the NHBA Board of Governors at its March 18, 1999 meeting
Facing every lawyer and law practice is the accumulation of documents, growth of open files, and storage of closed files. As the closet doors and file cabinets become harder and harder to close, the frequency in which we ask the inevitable question of “can I, should I, and if so, how may I destroy or dispose of client files or file contents?” increases. The question and its answer(s) involve important financial and other logistical considerations, and, of course, potentially significant ethical ramifications.
The general topic of file and record retention has been the subject of multiple New Hampshire articles in the past several years. In Records Retention Policies: Handle with Care, NHBN, November 20, 1996 the staff writers of the New Hampshire Bar News provided insight on the practical import of law firm policies regarding file and business/tax record retention. 1 Attorney decisions concerning the retention or destruction of client records must reflect due consideration of ethical obligations. John E. Tobin, Jr., on behalf of the New Hampshire Bar Association Ethics Committee (the “NHBA Ethics Committee”), first visited the ethics aspect of file retention in the 1987 practical ethics article Retention of Client Files, 13 NHLW 527, March 4, 1987. In his article, Mr. Tobin examined the scope of a lawyer’s ethical duty to retain closed client files under the then newly adopted Rules of Professional conduct. He noted that the Rules of Professional Conduct “do not deal directly” with the issue of client file retention, and observed that, in grappling with the issue, several other jurisdictions had instead followed guidelines provided within ABA Informal Opinion 1384, March 14, 1977 (written under the Code of Professional Responsibility).
In Informal Opinion 1384, the ABA Committee on Ethics and Professional Responsibility opined that dealing with the “economic burden of storing retired and inactive files” is “primarily a question of business management.” The ABA Committee further concluded that as a matter of professional conduct:
- [a] lawyer does not have a general duty to preserve all of his files permanently…
- But clients (and former clients) reasonably expect from their lawyers that valuable and useful information in the lawyers’ files, and not otherwise readily available to the clients, will not be prematurely and carelessly destroyed, to the client’s detriment.
- We cannot say there is a specific time during which a lawyer must preserve all files and beyond which he is free to destroy all files. (Emphasis added.)
In this light, the ABA Committee stated that good common sense should answer most questions regarding client file storage/disposal, but, helpfully, offered its list of eight “considerations” for lawyers visiting the question of client file storage/disposal (the “ABA Guidelines”). 2 As the ABA Guidelines are just that, or “considerations”, they speak throughout in terms of “should” rather than “shall”.
In the twelve years since Mr. Tobin first reviewed the issue under the light of the ABA Guidelines, there have been no pertinent changes to New Hampshire’s Rules of Professional Conduct or court decisions in this State which should alter the validity of his conclusions. Indeed, to this day, it does not appear that any jurisdiction has adopted mandatory procedures in the area of client file retention, and ABA Informal Opinion 1384 remains the leading resource. Thus, the answers to questions regarding file retention continue to depend on the specific nature of the documents or instruments in the file, and the circumstances of the specific situation.
Presently, the New Hampshire Supreme Court is considering several amendments to the Rules of Professional Conduct. Although file retention was an issue reviewed by the Supreme Court Advisory Committee on Rules, the only amendment proposed to the Court in recent times on the issue was an addition to the New Hampshire Comment to Rule 1.15 (with cross-references in the comments to Rules 1.1, 1.3, 1.13, and 1.16 included in the October 15, 1997 amendment proposals. That proposed amendment recognizes and calls attention to the continuing duty of a lawyer to maintain confidentiality regarding a former client, as well as the duties under Rule 1.15 concerning preservation and segregation of client property. Most significantly, the proposed amendment states:
- At a minimum, the substantive portions of a client file, when not delivered to the client , should be retained by the lawyer for at least six years from the date of the last action taken on the file, or beyond any applicable period of statutory limitations on actions, whichever is longer. Disposal of the file should reflect the continuing obligation of confidentiality and the need to provide reasonable notice to the client of the pending or proposed disposal. ( Emphasis added .)
Appropriately, the proposed amendment to Rule 1.15 concludes with a reference and citation “for further guidance” to ABA Informal Opinion 1384 .
It is possible to read the “delivered to the client” language from the proposed amendment as allowing an attorney to rely on the incidental courtesy copies which he or she may send to the client as satisfying the ethical obligations. However, this would fly in the face of the fact that it is the client, not the attorney, who “owns” the attorney’s file. 3 Accordingly, the language of the proposed amendment and the text of Rule 1.15 (a) – (c), should be read to require that the attorney make a more formal, complete delivery of the “substantive portions of the client file” than the piecemeal, day-to-day copies he or she may send to the client in the course of representation.
With the guidance of ABA Informal Opinion 1384, the earlier articles regarding ownership of client files and file disposal policies referred to in the second paragraph of this article, and, presumably, the proposed amendment to the comment to Rule 1.15, some common, yet specific, questions regarding client file retention can be examined. In all cases, however, 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 clients interests, Rule 1.16(d).
- Can the lawyer’s obligations regarding client files be “adjusted” by contract with the client?This is a place where the lawyer has some control over the fulfillment of his or her ethical obligations. The six-year retention period of the proposed amendment to the comment to Rule 1.15, applies to “substantive portions of a client file, . . . not delivered to the client.” (Emphasis added). There does not appear to be any bar to including in retainer agreement provisions which specifically shorten the period in which the attorney will deliver the files. Moreover, although the attorney can not charge or contract to charge a client for copies of the file when the client requests or receives the “delivery” of the file, the attorney may include in a fee agreement copy charges for the incidental courtesy copies sent to the client during the course of the representation. See, however, Practical Ethics : Clients’ Files , supra , for a discussion of difficulties in using fee agreements for purposes such as imposing copy charges or waiving notice of destruction of file contents.
- Is a lawyer required to retain an original deed, will or other instrument?Although the first guideline of ABA Informal Opinion 1384 makes clear that a lawyer should not destroy or discard an original instrument, neither that guideline nor any other resource requires that the lawyer retain all originals. Rather, the lawyer may, return the original to the client, or, when appropriate, file or record the original in the proper registry or court. However, in the event that a lawyer is in possession of an original instrument (or, for that matter, any other property of the client’s of inherent value), and can not locate the client, or the client will not receive the original, the lawyer must retain it indefinitely.
- Is a lawyer required to retain copies of pleadings and court orders?Assuming that the originals are on file with the appropriate court and have been copied to the client, it does not seem that a lawyer must retain copies of court pleadings or court orders for any length of time after the close of a case.
- Is the lawyer required to retain copies of correspondence, notes and other work product?These categories of documents are those which fall most clearly in the category of “it depends.” on the specific document and circumstances. See guidelines 2-4 of ABA Informal Opinion 1384 ; see also response to question 6 below.
- May a lawyer retain the file or portions of the file electronically or digitally, and discard the “hard copy”?Given the advances in technology, and the relatively low costs of some digital storage, getting rid of the paper is an attractive alternative. There does not appear to be any prohibition of this type of storage. Barring destruction of original instruments and other material of intrinsic value, any method that preserves confidentiality and security of the remainder of the file, and permits reproduction in hard copy, should be acceptable. Attorneys who employ such alternative means of file retention, however, should also be mindful and sensitive to changes in technology which may impair future accessibility. See also N.H . E.C.O.P. 86-7/8 (regarding microfilming file contents and destruction of originals).
- What is the appropriate method for disposing of a client’s file?The client should first be informed of the disposal plans, with the opportunity to retrieve the file. If the lawyer can not contact a client, the attorney should publish notice of the intention to destroy all or a portion of his or her files from or before a certain time period (without naming the client(s) specifically). With the exception of original instruments or other documents of inherent value, destruction may occur in any manner which properly preserves the ongoing duty of confidentiality. The lawyer should permanently maintain an index of files/documents destroyed.
While a lawyer does not have an ethical obligation to maintain a client’s file indefinitely, it is important to remember the overriding co nsiderations of confidentiality, proprietary rights, a client’s reasonable expectations, and the lawyer’s duty to avoid foreseeable prejudice to the client’s interests. Above all, it seems that the lawyer should take steps to assure to communicate to the client exactly how the lawyer will retain or dispose of the file, and to assure that no portion of the file is destroyed prematurely
ABA INFORMAL OPINION 1384
GUIDELINES FOR CLIENT FILE RETENTION/DISPOSITION
- Unless the client consents, a lawyer should not destroy or discard items that clearly or probably belong to the client. Such items include those furnished to the lawyer by or on behalf of the client, the return of which could reasonably be expected by the client, and original documents (especially when not filed or recorded in the public records).
- A lawyer should use care not to destroy or discard information that the lawyer knows or should know may still be necessary or useful in the assertion or defense of the client’s position in a matter for which the applicable statutory limitations period has not expired.
- A lawyer should use care not to destroy or discard information that the client may need, has not previously been given to the client, and is not otherwise readily available to the client, and which the client may reasonably expect will be preserved by the lawyer.
- In determining the length of time for retention or disposition of a file, a lawyer should exercise d iscretion. The nature and contents of some files may indicate a need for longer retention than do the nature and contents of other files, based upon their obvious relevance and materiality to matters that can be expected to arise.
- A lawyer should take special care to preserve, indefinitely, accurate and complete records of the lawyer’s receipt and disbursement of trust funds.
- In disposing of a file, a lawyer should protect the confidentiality of the contents.
- A lawyer should not destroy or dis pose of a file without screening it in order to determine that consideration has been given to the matters discussed above.
- A lawyer should preserve, perhaps for an extended time, an index or identification of the files that the lawyer has destroyed or disposed of.
 See also Who Owns a Lawyer’s Files: The Lawyer or the Client, NHBN, May 6, 1998, by William J. Saturley, and Gordon J. MacDonald, involving the client/former client’s and lawyer’s respective proprietary interests in the contents, including work product, of the client’s file; see Practical Ethics: Clients’ Files, NHBN January 20, 1999