Mark Dubois

An important issue to consider for lawyers thinking of winding up a law practice is what to do with the old files. Many speakers at law office management seminars suggest that attorneys and firms develop guidelines and policies to prevent the problem of a retired, disabled, disappeared or dead lawyer leaving thousands of files for her or his successors, heirs or assigns to deal with. But it's a policy often honored more in the breach than the observance.

Assuming, however, that you suck it up and decide to finally dig into the archives and start to reduce the volume, what do you give back, what do you keep and what do you chuck? I think there are four considerations.

The Connecticut Bar Association has a pretty good publication which can be found here. There are seven guidelines with excellent commentary:

Guideline 1. Notwithstanding any of the other policies set forth below, the retention or destruction of documents may be determined by written agreement between the attorney and the client.

Guideline 2. A copy of a document need not be kept after the original has been returned to the client or other owner.

Guideline 3. All documents shall be kept seven years from the date of completion of services rendered by an attorney.

Guideline 4. All original documents signed by the client and documents conferring or imposing legal rights or obligations shall be kept seven years from the date of such signing or the cessation of such rights or obligations, whichever is longer. No such document shall be destroyed until the client or owner is mailed written notice at least 30 days before destruction of the document.

Guideline 5. Documents may be copied and retained in any medium which accurately depicts the original document and from which accurate copies can be made. The originals of any documents so copied, other than those documents set forth in paragraph 4 above, need not be kept after their copying.

Guideline 6. Any document which is kept as a permanent public record need not be kept after its recording. No such document shall be destroyed until the client or owner of the document is mailed written notice at least 30 days before destruction of the document.

Guideline 7. Subject to the above guidelines, upon termination of practice, any documents still being retained by the attorney should be returned to the client or the client notified of any successor attorney agreeing to take upon the obligations of retaining those documents.

Rule of Professional Conduct 1.15(j) also contains a list of materials that must be kept for seven years, mostly related to the financial aspects of client representation and IOLTA account management. Remember that as long as you have an active IOLTA account listed on your attorney registration, you will be subject to a random audit. Sometimes these audits force you to go back much longer than seven years to trace the source or ownership of surplus funds in the account, so you should balance, reconcile and clean up the account, or keep the records required to do so.

The last line of the CBA guidelines warns that you should also segregate “any files that may pose future problems for the retiring lawyer.” These could be matters in which there is a possibility of a malpractice claim or matters in which you might expect to have a grievance filed against you. While the statute of repose for malpractice cases is three years (from date of conduct, not discovery), the limitation for grievances is six years. That's not a hard-and-fast rule, as there is also a provision for a one-year statute running from the date of discovery for certain rules, including those dealing with fiduciary conduct and the Rule 8 catchall rules, as well as a few other special circumstances.

The final consideration, and one I really don't have a good answer for, is how long you should keep records in cases in which you might later have to answer questions. For instance, in contested cases, an attorney can be compelled to testify as to discussions that led to the creation of testamentary documents. Contemporary notes, drafts and other such materials may be the only way you can refresh your recollection and give good evidence. I'm not sure what the standard of care or best practice is in such cases or whether you might be exposed to claims if you failed to retain enough materials to be a competent witness, but it's something to think about if some part of your practice involves such work.

Considering the number of us who are approaching the magic age at which we have to address these issues, file management and destruction promises to be a growth business.