Recently, while catching up on my “pleasure” reading — the November issue of The Alabama Lawyer — during a lunch break, I came across an article from the Office of General Counsel regarding the “Retention, Storage, Ownership, Production and Destruction of Client Files.” I want to share a few of the article’s great reminders about how we, as lawyers, are to handle our clients’ files.
The article opens, like any good legal publication should, with a reference to the applicable rule(s). In this case, the article identified Rules 1.6, 1.15, 1.16(d) of the Alabama Rules of Professional Conduct as some of the rules that set out a lawyer’s responsibilities related to a client’s files. (You can read those rules on your own lunch break.). In breaking down those rules, the article discussed several important topics: (1) what is considered part of a client’s file; (2) how long a client’s file must be retained; (3) what contents in a client’s file may be destroyed; (4) ethical considerations for electronic files; and (5) in what format we are to deliver the client’s file.
First, the article identifies what is considered part of the client’s file. There are two competing theories on this issue. The first theory is the “end product” approach, which divides ownership of the documents between the client and the lawyer and permits the lawyer to retain certain documents like notes to himself, or other blemished drafts, which may not be flattering to the client or the lawyer. The second theory is the majority view, with which the Alabama Disciplinary Commission agrees, and considers the “entire file” to be the client’s. This view is consistent with a lawyer’s fiduciary relationship to the client, which requires full and candid disclosure.
Second, the article discusses how long we must retain a client’s file. Rule 1.15 tells us that property of a client (including a client’s file) shall be preserved for six (6) years after termination of the representation. Therefore, it is clear that, at a minimum, a lawyer is obligated to maintain a client’s file for six (6) years after the conclusion of the representation.
Third, after the minimum six (6) year retention of a client’s file, what contents in the client’s file may be destroyed? The article identifies three (3) major categories of such contents: Category 1 is “intrinsically valuable property” like wills, stock certificates, cash, negotiable instruments, deeds and settlement agreements. Category 1 items should never be destroyed, and should be delivered back to the client or deposited with the court. Category 2 is “valuable property” like photographs, video recordings, pleadings, discovery, and memoranda. Category 2 items should only be destroyed with actual consent or implied consent (e.g., a client’s failure to take possession of the property within an identified period of time) of the client. Category 3 contents are considered property with no value or reasonably foreseeable future value, and the best practice is still to get client consent before destroying them.
Fourth, as the practice of law shifts to a more electronic format, there are new considerations. If you convert paper documents or files into an electronic form, then the same policies, discussed above, apply to what can be destroyed after conversion. If the original is not destroyed, then the lawyer has an obligation to provide reasonable measures to ensure the confidentiality, security and integrity of the document. A similar approach must also be taken with regard to electronic files. A lawyer must take reasonable steps to maintain confidentiality and security by installing things like firewalls and intrusion detection software, and a lawyer must “back up” all electronically stored files onto another computer or with a third-party vendor.
Finally, when a client has requested a copy of his file, the file may be produced in the format in which it was maintained by the lawyer, unless otherwise agreed upon by the client. As a “best practice” tip, it is important to develop a procedure to integrate the various forms of a client’s file into an organized system that can be promptly accessed and ensures production of the client’s complete file.