NYCLA COMMITTEE ON PROFESSIONAL ETHICS
Retention of closed client files/papers
A LAWYER SHOULD TAKE REASONABLE STEPS UNDER THE CIRCUMSTANCES TO RETAIN CLOSED CLIENT FILES IN LIGHT OF (1) LEGAL OR ETHICAL RULES PERTAINING TO DOCUMENT RETENTION, AND (2) THE CLIENT’S WISHES REGARDING THE FILES
DR 1-102(A)(5); DR 4-101(B)(1); DR 5-105(E); DR 9-102(D); EC 1- 5; EC 4-6
When and how may a lawyer discard closed client files?
Inquirer is an attorney no longer representing private clients. He anticipates losing access to his current storage space for former clients’ files, and he inquires how long he must keep the closed files, implying that he would prefer to discard them if possible.
Although Inquirer no longer represents private clients, he still is subject to ethical restraints on the length of time he should keep former clients’ documents and on the manner of their disposal. Restatement (Third) The Law Governing Lawyers, § 58, cmt. b (Proposed Draft, May 1996). These restrictions are not rigid. They vary case-by-case in light of the concerns of lawyers, clients and the justice system. On the one hand, lawyers wish to avoid unreasonable burdens and expenses from storing closed files. On the other hand, clients and the justice system have an interest in preserving important documents in the event they are needed after a client’s file has been closed. See N.Y. State Op. 460 (1977) (hereinafter, “Op. 460”). How these interests are balanced in a particular case usually depends on the type of documents in question.
The fewest ethical implications are raised by documents which belong to the lawyer. Unless the lawyer has an independent legal duty to retain such documents, he is free to discard them absent “extraordinary circumstances manifesting a client’s clear and present need for such documents.” N.Y. State Op. 623 (1991) (hereinafter, “Op. 623”). Note, however, that whether a document in a client’s file “belongs” to the attorney, or instead belongs to the client, is a legal question beyond the scope of this Opinion. See N.Y. City, Formal Op. 1986-4 (1986)(hereinafter, Op. 1986-4); Sage v. Proskauer Rose Goetz & Mendelsohn LLP, 91 N.Y.2d 30, 689 N.E.2d 879, 666 N.Y.S.2d 985 (1997).
At the other end of the spectrum are documents which are subject to a specific legal duty of retention. An attorney should not discard such documents. Ops. 460 and 623; DR 1- 102(A)(5); EC 1-5. But whether the attorney or, instead, the client is responsible for keeping the documents depends on which person bears the legal duty.
The lawyer may be subject to an independent duty of retention from several sources. For example, DR 9-102(D) requires lawyers to keep originals or copies of certain important records (e.g., retainer and compensation agreements) for seven years. And DR 5-105(E) requires a law firm to maintain a system for checking potential conflicts of interest, which may necessitate retention of certain documents in closed client files. See Roy Simon, Do I Have to Keep These Old Files?, The N.Y. Prof. Resp. Rpt., pp. 1-2 (April 1988). Alternatively, a court might require a lawyer to retain certain records. See, e.g., 22 N.Y.C.R.R. §§ 603.15, 691.12(b) (a New York Appellate Division’s rules concerning lawyer’s records). Other laws, rules or regulations may apply as well. Whatever the source, such duties are personal to the lawyer. The lawyer therefore cannot satisfy his ethical obligations by delivering such documents to the client for safekeeping along with the client’s file. The lawyer should keep them himself. Ops. 460 and 623.
This is not necessarily so with respect to documents a client is obligated to keep. Like a lawyer, a client’s duty to retain documents may arise from several sources, e.g., accounting, securities, corporate or tax laws or regulations. The lawyer ethically may deliver these documents to the client so long as the lawyer informs the client of the pertinent legal obligations. If, however, the lawyer cannot deliver the documents, then they should be kept on the client’s behalf for at least the legally prescribed period, or for longer if the client might have a foreseeable need for the documents after expiration of the period mandated by law. Id.
Between these extremes are the remaining majority of documents likely to be found in a client’s file. As a first principle, these client documents may be discarded at a time and in a manner consistent with the client’s instructions, if any. Id.; N.Y. City No. 624 (1974)(hereinafter, “Op. 624”). Often, however, a client will not have issued instructions before the file is closed. In such cases, the attorney should make reasonable efforts to return the file to the client, preferably by sending a letter informing the client of the attorney’s intent to discard the file, offering to return the file to the client, describing documents in the file that the client has a legal duty to retain, if any, and describing “any documents that the client would foreseeable need to establish substantial personal or property rights.” Op. 623. Providing such information satisfies the attorney’s duty to ensure the client is well-informed. EC 7-8. Among other things, a client’s “foreseeable need” for a document may depend on whether the client has a copy of the document, although this may not be determinative.
Despite an attorney’s reasonable efforts, from time-to-time a client will not be able to be reached or will not respond to the attorney’s letter. The attorney in such circumstances may discard the client’s file, except for documents that the client has a legal duty to retain and documents that the client foreseeably might need. These should be retained as discussed above. Ops. 460 and 623. It will also happen from time to time that the client is incapacitated when the attorney attempts to contact the client. The lawyer then may deliver the closed files to the client’s legal representative, if any. Id.; EC 7-11 and 7-12.
Finally, two further points should be noted. First, an attorney always should discard documents in a manner consistent with the attorney’s duty to maintain client confidences. Ops. 460 and 623; DR 4-10(B)(1) and (D); EC 4-6. Second, in some circumstances it may be appropriate for an attorney to record the contents of a client’s file electronically or on microfilm instead of retaining the physical file, so long as the evidentiary value of such documents will not be unduly impaired by the method of storage. Op. 624.
Before discarding his former clients’ files, Inquirer should consider his obligations to his clients and to the legal system with respect to the documents in the files, as outlined above. Only if he has satisfied these duties should he discard the files.