As the law firm community rebounds from the Great Recession, many firms across the country are rethinking their office spaces. Moving offices makes a lot of sense for several reasons, including changing geography, reducing overhead, and seeking an environment that fosters an efficient and collaborative approach to practicing law. As a result, some firms are exploring more modern, open offices. Others seek to consolidate space and procure a less expensive lease.

For many firms, part of moving involves streamlining materials, updating document retention protocols, and even disposing of files or equipment that are no longer needed. But a move also could implicate the firm's obligations to retain or destroy documents and client files. Attorneys and law firms on the move can take steps to reduce these risks, as described below.

Duties Under California Rules of Professional Conduct

When evaluating any ethical or professional obligation, the usual place to start is with the jurisdiction's rules that regulate the issue at hand. The California Rules of Professional Conduct shed some light on an attorney's obligations to retain or remit files after the termination of an attorney-client relationship. An attorney must, “subject to any protective order or nondisclosure agreement, promptly release to the client, at the request of the client, all the client papers and property,” Rule 3-700; see also Cal. Bus. & Prof. Code Section 6068(n). Rule 3-700 further clarifies that this obligation includes all “items reasonably necessary to the client's representation, whether the client has paid for them or not.”

If documents needed to protect client interests have been destroyed, the law firm not only limits its ability to use the file to defend against any potential legal malpractice claim, but could open itself to a potential bar grievance for failing to take the steps necessary to surrender papers and property to which the client is entitled.

California State Bar's Guidance

The California State Bar has offered additional guidance for firms deciding whether to store or destroy old client documents. In Formal Opinion No. 2001-157, the bar noted that attorneys are required to protect the confidentiality of client files, including any fee agreements, pursuant to Bus. & Prof. Code, Sections 6068, subd. (e), 6149.