You’d think there would be a straightforward answer to this question, but unfortunately there’s no clear rule under California law. Here’s a look at the ways this issue is approached and how to best protect yourself.
Neither Cal Rules of Prof Cond 1.16(e)(1) nor California case law addresses the length of time an attorney must retain client papers after completion of the client matter if the client doesn’t request their return. There are different approaches to the problem:
Approach #1: Under the approach taken by the State Bar, there’s “no shortcut, ‘bright line’ rule” for determining how long to retain items in a closed file, because “the need to maintain client papers cannot be measured in all cases by a fixed time period.” California State Bar Formal Opinion No. 2001-157. Absent an agreement on the disposition of papers, the attorney must make reasonable efforts to obtain the client’s consent before destroying items in the client’s file. If the attorney can’t get client instructions, he or she may destroy the items unless there’s reason to believe that preservation is required by law or destruction of the items would prejudice the client. California State Bar Formal Opinion No. 2001-157.
A similar approach was taken in SF County Bar Association Ethics Committee Formal Opinion No. 1996-1: Absent agreement, attorney must keep potentially significant client papers until there is no longer any “reasonably foreseeable prejudice to the client’s rights.”
Approach #2: Under the approach taken in LA County Bar Association Formal Opinion No. 475 (Jan. 1994), absent an agreement otherwise, 5 years is a reasonable time to retain “potentially significant” materials in a civil matter, but papers from criminal matters should be kept for the former client’s lifetime.
This 5-year retention rule is based on Cal Rules of Prof Cond 1.15 (former Rule 4-100) (preserving identity of funds and property of a client), not Rule 1.16 (former Rule 3-700) (termination of employment). But, as California State Bar Formal Opinion No. 2001-157 points out at n5, former Rule 4-100 refers not to file retention but to the attorney’s obligation to retain records of “funds, securities, and other properties of clients coming into their possession.”
Regardless of the approach followed, don’t destroy items with inherent value (e.g., original testamentary instruments or stock certificates) under any circumstances.
To reduce “the burdens and expense of preserving former client files,” the State Bar suggests that “attorneys handling discrete matters such as claims or litigation” consider including in their fee agreements a provision authorizing destruction of the client’s files after a specified and reasonable period of time, unless the client requests the attorney to deliver the files to the client. California State Bar Formal Opinion No. 2001-157. In CEB’s Fee Agreement Forms Manual, chap 1 is a sample provision on release, retention, and disposition of client’s papers and property with commentary to help you choose the appropriate options for your cases.
Other CEBblog™ posts you may find useful:
- You Should Have a Client File Retention Policy: Here’s a Sample
- What to Tell Clients About Their Files at the End of the Case
- Representing Co-Parties? Send This Letter.
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