How Long Should An Attorney Retain Client Records?
Physical space may not be as great an issue in the digital age regarding the storage of client files, but the fact remains that the storage of client files is necessary for some time. But how long? Each state’s Rules of Professional Conduct specifically describe trust account records and for how long they must be kept by an attorney.
A state’s ethical rules typically prescribe, as suggested standards, minimum periods for retaining client files that pertain to certain practice areas, with exception of trust account records. Attorneys are free to choose a longer or shorter term of retention of client files. Some permanent record should be maintained that describes the file and its disposition.
The California Rules of Professional Conduct do not specify how long an attorney must retain a former client’s file. Specifically, Rule 3-700(D)(1) does not set a minimum amount of time that an attorney must keep the former client’s file, nor does it explain when, if ever, particular items in the former client’s file may be discarded or destroyed.
Although California courts have not yet addressed the retention period, several bar associations within the state, including the State Bar of California, have provided non-binding guidance on this issue. As a threshold matter, these bar associations have recognized a distinction between civil and criminal cases for purposes of the retention period.
The Los Angeles County Bar Association concluded that a civil attorney should retain potentially significant papers and property in the former client’s file for at least five years analogous to Rule 4-100(B)(3) of the California Rules of Professional Conduct, which requires an attorney to maintain all records of client funds and other properties that the client provided to the attorney for at least five years.
In California, an attorney’s obligations regarding closed client files are derived from rule 3-700 of the Rules of Professional Conduct and Business and Professions Code section 6068, subdivision (e). Rule 3-700(D)(1) provides that a member whose employment has terminated shall:
“Subject to any protective order or non-disclosure agreement, promptly release to the client, at the request of the client, all the client papers and property. ‘Client papers and property’ includes correspondence, pleadings, deposition transcripts, exhibits, physical evidence, expert’s reports, and other items reasonably necessary to the client’s representation, whether the client has paid for them or not.”
Rule 3-700(D) apparently contemplates a scenario where the matter in which the attorney has represented the client continues after the termination of the lawyer’s employment. It is well settled in California that the client papers and property that the client is entitled to receive belong to the client, not to the attorney. (Rose v. State Bar (1989) 49 Cal.3d 646, 655 [262 Cal. Rptr. 702, 779 P.2d 761]; Weiss v. Marcus (1975) 51 Cal.App.3d 590, 599 [124 Cal.Rptr. 297].) The client’s ownership is not altered by the circumstances or the timing of the termination of the attorney-client relationship, or by whether the attorney has been paid for his or her services. (Academy of California Optometrists, Inc. v. Superior Court (Damir) (1975) 51 Cal.App.3d 999, 1005-06 [124 Cal.Rptr. 668]; see also Cal. State Bar Formal Opn. No. 1994-134.)
As to other client papers and property to which the former client is entitled under rule 3-700, before disposing of the items, the attorney first must use all reasonable means to notify the former client of the existence of the file, of the former client’s right to examine and retrieve the contents, and of their intended destruction. While there are no express requirements as to what such a notice should contain, the purpose of the notice will be met if it states plainly that the files in question will be destroyed unless contrary instructions are received by the attorney by a specific date, with a reasonable opportunity to respond provided.
If the attorney has no reason to believe that the items proposed to be destroyed include items required by law to be maintained or that would be reasonably necessary to the former client to establish a right or a defense to a claim, then if the former client cannot be located by any reasonable means, or fails to respond to the notice after a reasonable time, the attorney may destroy the items.
If the attorney has reason to believe that the file contains items that are required by law to be retained or that the client will reasonably need to establish a right or a defense to a claim, the attorney should inspect the file for such items and should retain such items for the period required by law or according to the reasonably foreseeable needs of the client. The balance of the file may then be destroyed.
Formal Opinion No. 420 (1983) of the Los Angeles County Bar Association Committee on Legal Ethics states:
“Files relating to criminal matters may well have future vitality even after judgment, sentence and statutory appeals have concluded. In criminal matters, the attorney cannot foresee the future utility of the information contained in the file. The Committee concludes, therefore, that it is incumbent on the attorney in a criminal matter to obtain some specific written instruction from the client authorizing the destruction of the file. Absent such written instruction, the attorney should not undertake the destruction of client files on the attorney’s initiative.”
California’s “Three Strikes” law significantly increases the level of importance of a client file in a matter resulting in a prior conviction. As a result, client files in criminal matters should not be destroyed without the former client’s express consent while the former client is alive.
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