Attorneys maintain files on their clients’ cases with documents (and sometimes other property) that clients have provided in connection with those cases. These files have to be returned to the client, at a client’s request, when the attorney’s “employment has terminated,” subject to “any protective order or nondisclosure agreement.” Cal Rules of Prof Cond 3–700(D)(1). Given this rule, it’s imperative that attorneys establish an office policy on the retention and disposition (including destruction) of client files, and notify clients of this policy.
Attorneys should advise clients of their file retention policy at the outset of their representation and send a reminder at its conclusion. The policy can be discussed either within the attorney-client fee agreement itself or in a letter discussing a client’s case at the outset of representation. In either situation, this sample exhibit can be appended to the document:
FILE RETENTION POLICY
This law office generally maintains a client’s file for a period of _ _[specify period, e.g., 10]_ _ years following the completion of an attorney’s work on a case, after which the file is shredded and discarded without further notice. [Certain of my files are kept in off-site storage facilities, and retrieval of them requires at least _ _[specify period, e.g., 5]_ _ business days.]
In the following cases, however, files will be retained for a longer period, but normally not more than _ _[specify period, e.g., 20]_ _ years: _ _[specify categories of cases, e.g., (1) cases involving a minor child or otherwise in which the statute of limitations in bringing a legal action is tolled; (2) wills and unexecuted estate plans; (3) unperformed agreements; (4) cases involving items required to be retained by law; and (5) outstanding judgments and orders]_ _.
This office fully complies with California law on the return of “client papers and property,” as defined in California Rules of Professional Conduct 3–700(D). At a client’s request, all such papers and property will be returned to the client, absent a nondisclosure agreement or protective order, provided that the request is made in writing within the file retention period stated in this document, or as otherwise agreed to in writing by the attorney and client.
If you use an appended exhibit like this, be sure to refer to it in the body of the fee agreement or letter.
For more on the retention and disposition of client files, including a sample letter to the client on the file retention policy, check out CEB’s California Client Communications Manual: Sample Letters and Forms, chap 8. This manual includes more than 65 sample letters and essential forms to take you from initial client contact through conclusion of the case.
Other CEBblog™ you may find useful:
- When the Party’s Over: What to Do with Client Files?
- What to Tell Clients About Their Files at the End of the Case
- What to Tell a Client When the Case Lacks Merit
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