To Retain or Refrain?  Legal Record Retention Requirements

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Litigation generates a ton of paper – pleadings, motions, drafts, correspondence, legal research – and these materials do not simply vanish once your involvement with a case has ended.  What happens to all of this paper is an important question not only in terms of your legal obligations with regard to retention, but also for your bottom line.  The necessity of managing and storing records from closed cases adds to the cost of providing legal services. So what happens when a case closes or you pass the case along to another attorney?  Must you keep the 500,000 pages of documents generated during your representation?  Can you simply send everything to the shredder?  How long must an attorney retain client files once the case is closed or the representation is terminated?

The Model Rules address both an attorney’s duty to safeguard client property as well as an attorney’s duty when he has withdrawn from representation.  With regard to the former, the Rules require that a client’s property, including a case file, “shall be kept by the lawyer and shall be preserved for a period of five (5) years after termination of the representation.”

Further, when withdrawing from a case, the Rules mandate the withdrawing attorney provide the file to the client and permit, but do not require, that an attorney “retain papers relating to the client to the extent permitted by other law.”

State statutes work in tandem with these rules and sometimes impose more stringent records retention requirements, requiring attorneys to keep records for longer than the five (5) year period mandating by the Rules.  State bar ethics entities have also weighed in.  Below are some tips gleaned from these interpretations:

  • Plan with élan. Develop a firm-wide file retention policy, ensuring it complies with your insurance policy and state law.
  • Smart from the start. Set out this policy in every representation agreement and reiterate it in the final letter sent to the client at the conclusion of the representation.
  • Thin is in. Check your state’s rules about culling non-essential documents from a retained file.  You may not be required to retain every sheet of paper.  Indeed, some states require an attorney to retain only certain documents, such as those that could be reasonably necessary to establish a future right or defense to a claim; the other file materials can be destroyed.
  • Allowed in the cloud? Some states do not require that your office retain a physical copy of the file, but permit storing records electronically or in the cloud instead.  With the wealth of e-records storage options available today, this may be a space- and cost-saving – just make sure you take the customary e-storage precautions.
  • Toss like a boss. Destroy responsibly.  Before disposing of any files, make sure any non-replaceable documents (like original wills and deeds), have been removed.  Choose a method of destruction that protects the confidentiality of the materials.  Also, the method of destroying the records must protect the confidentiality of the materials.