Most attorneys are aware that there are rules about retaining and disposing of client files, but not enough of them have a clear policy that follows these rules and communicate the policy to their clients. It’s when the representation is over that the policy kicks in.
The California Rules of Professional Conduct are very clear about what an attorney must do with a client’s files after the case or representation is over. Those rules, as well as the practical need for a consistent way of handling and storing client files, make it imperative to establish a policy in your office on the retention and disposition (including destruction) of client files, and to notify clients of this policy.
Make sure your policy covers the following issues:
- How long you will retain client files. Given the five-year requirement in Cal Rules of Prof Cond 4-100(B)(3), five years would appear to be the minimum reasonably needed to preserve client files. But, because the statute of limitations for legal malpractice creates a potentially longer time period for exposure to liability, you should maintain client files for at least 10 years after the conclusion of a case, and even longer for cases that may involve tolling of the limitations period. See CCP §340.6.
- Special retention requirements from certain cases. Take into account the type of cases you handle, as well as any retention requirements imposed by your malpractice insurance carrier.
- How and where to retain files. Consider how you will store your files and in what medium (including electronic). This will inform your policy on the related issue of old file destruction.
- How you will tell clients about your policy. Advise clients of your policy on file management at the outset of their representation with a reminder at its conclusion. This could be done within an attorney-client fee agreement, in a letter that discusses the conclusion of your services, or in a letter (or addendum to a letter) that solely discusses that policy. When a client’s matter is completed, close his or her file in accordance with a standard office procedure.
For illustrative letters that advise a client of an attorney’s policy on the retention and disposition of client files, including a stand-alone statement of an attorney’s file management policy, turn to CEB’s California Client Communications Manual: Sample Letters and Forms, chap 8.
Want more tips to use in your new law practice? Check out CEB’s program Launching a Successful Law Practice, available On Demand.
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