For both electronic and paper client files, the most important step is to get the client document retention policy in writing. The written retention policy needs specific procedures for every law firm staff member. If these procedures are not in writing then there may be different procedures being followed for every attorney and staff member in the firm. If this happens, different standards followed by some can be used as evidence of negligence by others. It is difficult for law firms with no written document retention policy to ensure that reasonable steps have been taken to preserve necessary client files and information.
The law firm’s engagement letter should layout the basic document retention policy of the firm and how the firm will treat client documents. Keep in mind that you are the custodian of the file, not the owner and that the client file belongs to the client.
Rule 1.15 of the model rules requires attorneys to preserve client records and other property “for a period of five years after termination of the representation.” Although some states have adopted the ABA model rules many other states have not.
Generally, documents from closed files should be divided into three categories.
1. Legally significant documents, such as originals such as wills, leases, contracts, etc. should be kept, at a minimum, for the number of years required by state bar rules, but not less than the time needed for full operational effect of the document.
2. Nearly all other documents should be retained for the number of years required by state bar rules or until the statute of limitations for any legal malpractice claims has lapsed, whichever is greater.
3. Documents subject to a “litigation hold” must be retained until the litigation hold is no longer in effect. A litigation hold often exists when pending litigation or a government investigation may implicate the documents.
The informal ABA opinion 1384 provides more guidelines for document retention:
1. 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.)
2. A lawyer should use care not to destroy or discard information that the lawyer knows or should know may still be useful to the assertion or defense of the client’s position in a matter for which the applicable statutory limitations period has not expired.
3. 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.
4. In determining the length of time for retention of dispositions of a file, a lawyer should exercise discretion. The nature and contents of files may indicate a need for longer retention than other files, based upon their relevance and materiality to matters that can be expected to arise.
5. A lawyer should take special care to preserve, indefinitely, accurate and complete records of the lawyer’s receipt and disbursement of trust funds.
6. In disposing of a file, a lawyer should protect the confidentiality of the contents.
7. A lawyer should not destroy or dispose of a file without screening it in order to determine that consideration has been given to the matters discussed above.
8. A lawyer should preserve, for an extended time, an index or identification of the files the lawyer has destroyed or disposed of.