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how long must an attorney retain a file?

California Professional Rules of Conduct, rule 3-700(D) does not state a specific time period for the maintenance and retention of client files. And, rule 801-1 directs an attorney to preserve client properties. As space to store transcripts, research, etc. becomes cramped, the question arises, "What do I do?"

 

Ethics commentators suggest that criminal lawyers should retain files for the duration of their clients' lives, unless authorized by a client to destroy or otherwise dispose of his or her file. (See LA Formal Op. No. 420 (1983).) But, when recently asked this question on the State Bar Ethics Hotline, they advised that if it is a criminal case, the file must be "kept indefinitely due to Three Strikes considerations." Indeed, "an attorney cannot foresee the future utility of information contained in [a criminal] file." (LA Formal Op. No. 420 (1983).) "Absent written instruction from a client on what to do with a file, the attorney should not undertake the destruction of client files on the attorney's initiative." (Ibid.)

Civil cases may have a little more leeway. First, counsel must make a diligent effort to contact the client to return the file to them or to obtain their written authorization to destroy it. After not hearing from a client after a 90-day period has passed, the lawyer can destroy files other than "intrinsically valuable documents," and if at least five years have passed since the closing date and the former client was not a minor. If the client was a minor the files should be retained until s/he reaches the age of majority. (See L.A. County Bar Formal Op. No. 475.) Another opinion concludes that a civil matter file should be kept as long as there is "any continuing reasonably foreseeable prejudice to the rights of a client if the client paper[s were] destroyed." (Bar Association of San Francisco Formal Op. No. 1996-1.) And, when recently asked this question on the State Bar Ethics Hotline, they advised that if it is a civil case, the file should be kept a minimum of "5-7 years."

Note: these rules are generalizations of the Formal Opinions mentioned and the California Professional Rules of Conduct. It is designed to alert counsel to the potential problem of overcrowding and destruction of client files. If you have a specific question regarding the retention of a former client's file or any other questions concerning the content of the file, the novelty or intrinsic value of some documents, or any other related questions, you can always contact the State Bar Ethics Hotline number at (800) 238-4427 for guidance or search their website (external link).

 

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