April 2014 - Retaining the Client File After the Representation Ends
by Jeremy G. Suiter
All good things come to an end, including attorney-client relationships. As a general rule, the papers and property that were accumulated by the attorney during the course of the relationship belong to the client, and the client has the right to receive the contents of the client file after the relationship has ended. Accordingly, once the engagement is over, Rule 3-700(D)(1) of the California Rules of Professional Conduct requires the attorney to “promptly release to the client, at the request of the client, all the client papers and property,” including “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.”
But what if the client does not ask to take possession of their papers and property? Storing boxes of correspondence, transcripts, and evidence onsite at your office can take up valuable space, and storing them offsite at a storage facility can be expensive. So how long must you keep them? And what, if anything, can you do to prevent the boxes from piling up in the first place? Like most things in law and life, the answers depend on the circumstances.
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.
Civil files should be retained for no less than five years, but certain contents may never be destroyed absent client agreement.
A specific time period for retaining all of the contents of a civil file does not exist absent an agreement with the client. At least one bar association has proposed a retention period of at least five years for “potentially significant” papers and property in a civil file. L.A. Cnty. Bar Ass’n Formal Op. No. 475 (1994), available here. But it and other bar associations have also recognized that, absent client consent, certain items should never be destroyed, including original papers and materials of inherent value received from a client.
The Los Angeles County Bar Association (LACBA) reached the conclusion that a civil attorney should retain potentially significant papers and property in the former client’s file for at least five years by analogizing 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. L.A. Cnty. Bar Ass’n Formal Op. No. 475. But even then, the LACBA cautioned that “intrinsically valuable” material, such as original stocks, bonds, wills, deeds, notes, or judgments, may not be destroyed without client consent. Id.
The Bar Association of San Francisco has opined that “not every writing placed in a client file must be maintained forever,” but it declined to “address the number of years which an attorney must retain client papers.” Bar Ass’n of San Francisco, Formal Op. 1996-1 (1996), available here. In its view, the “key to the retention of client papers, absent agreement to other arrangements, is the attorney’s obligation as a bailee of the client’s personal property and the need to retain those.” Id.
The State Bar of California agreed with certain conclusions from both bar associations. Similar to the LACBA, the State Bar concluded that, absent an agreement to the contrary, a civil attorney cannot destroy original papers and materials of inherent value received from a client. Cal. State Bar Formal Op. No. 2001-157 (2001), available here. As the State Bar explained, without a contrary agreement, the acceptance of client papers and property are subject to the law of deposit (Civil Code sections 1813-1847) or potentially other statutes, such as the Probate Code, and a civil attorney “has no right to destroy them, no matter how long they have been held.” Cal. State Bar Formal Op. No. 2001-157 (2001). The State Bar also agreed with the Bar Association of San Francisco that a civil attorney’s obligation to retain other contents of the client file “cannot be measured by a fixed time period” because the “[d]estruction of closed files requires an exercise of judgment.” Id. If the “item has no extrinsic value, but the attorney fears that the loss of the item will injure the former client, the item should be retained or the information contained therein preserved by microfilming or similar means.” Id.
Criminal files should be retained for the life of the client absent express client consent.
Attorneys in criminal matters have far less latitude. Specifically, bar associations have uniformly recommended that criminal attorneys retain the file for the life of the former client, unless the client expressly authorizes the file’s destruction. As the LACBA explained, files “relating to criminal matters may well have future vitality even after the judgment, sentence and statutory appeals have been concluded.” L.A. Cnty. Bar Ass’n Formal Op. No. 420 (1983). “Considerations pertaining to the criminal defendant’s liberty interest in the proceedings and to the possibility of review of criminal convictions by appeal or writ (even many years after conviction) warrant especially cautious treatment of criminal case files.” L.A. Cnty. Bar Ass’n Formal Op. No. 475. For example, information contained in a criminal client’s file could be relevant to future habeas petitions, actual innocence claims, and malpractice or ineffective assistance of counsel claims. Because a criminal defense “attorney cannot foresee the future utility of information contained in the file” after the representation ends, the attorney “should not undertake the destruction of the client files” absent “specific written instruction from the client authorizing the destruction of the file.” L.A. Cnty. Bar Ass’n Formal Op. No. 420.
The State Bar of California has quoted Opinion No. 420 with approval, adding that California’s subsequent adoption of the “Three Strikes” law (Penal Code section 1170.12) “could make a client file in a matter resulting in a prior conviction more important than ever.” Cal. State Bar Formal Op. No. 2001-157. Thus, the State Bar concluded that “client files in criminal matters should not be destroyed without the former client’s express consent while the client is alive.” Id.
There are ways to reduce the burden and expense of retaining client files.
Civil attorneys should include a provision in their initial fee agreement that states that, after the termination of the representation, the contents of the client file may be destroyed without review at the end of a specified and reasonable period of time unless the client has requested delivery of the files to the client. The provision may also discourage any retention of original client documents, and provide that original documents will be returned promptly to the client after receipt as soon as copies are made. The State Bar itself suggested such a provision in Formal Opinion No. 2001-157, and such a provision is consistent with the opinions from other bar associations that have noted that their retention recommendations apply in the absence of a contrary agreement with the client. L.A. Cnty. Bar Ass’n Formal Op. No. 475; Bar Ass’n of San Francisco Formal Op. 1996-1 (1996). At the conclusion of the matter, the attorney also should send the client a follow-up letter repeating the document retention policy and inviting the client to request the file. Finally, if the client does not take possession of the file during the retention period, the State Bar has suggested that a civil attorney may retain documents not of intrinsic value by “microfilming or similar means.” Cal. State Bar Formal Op. No. 2001-157 (2001). This suggests that a civil attorney could scan and then destroy certain documents, keeping them in the files in PDF format.
Criminal attorneys appear to have less leeway. The State Bar’s suggestions to include a document retention policy in fee agreements, and to retain certain documents by “microfilming or similar means,” were specific to civil cases. Cal. State Bar Formal Op. No. 2001-157 (2001). Given the unique nature of criminal matters, it is not clear that such proposals would be acceptable or advisable. Nevertheless, at the conclusion of a matter, a criminal attorney should send a letter inviting the client to request the file.
An attorney’s obligation to retain and preserve the client’s papers and property lives on even after the representation ends. Once the matter is over, all attorneys should encourage the client to take possession of the file. In addition, civil attorneys should consider including a document retention provision in their initial fee agreements, and storing certain documents by electronic means. Doing so will enable attorneys to reduce the burden and expense of storing client files while fulfilling their ethical obligations to those clients.
Jeremy G. Suiter is a litigation shareholder in the Newport Beach office of Stradling Yocca Carlson & Rauth and is a member of the OCBA’s Professionalism and Ethics Committee. He can be reached at email@example.com.