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?”
In a formal opinion, the State Bar of California Standing Committee on Professional Responsibility and Conduct concluded “that client files in criminal matters should not be destroyed without the former client’s express consent while the former client is alive.” (Cal. State Bar Standing Com. Prof. Responsibility and Conduct, Formal Opn. No. 2001-157; see also LA Formal Op. No. 420 (1983).) The State Bar’s Formal Opinion recognizes that the “adoption of measures such as California’s ‘Three Strikes’ law (Proposition 184 of 1994, codified as Penal Code section 1170.12) could make a client file in a matter resulting a prior conviction more important than ever.” (Cal. State Bar Standing Com. Prof. Responsibility and Conduct, Formal Opn. No. 2001-157.) 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.)
Formal Opinion Number 2001-157 also provides detailed guidance on an attorney’s ethical duties regarding the retention of former clients’ files in civil cases. (See also L.A. County Bar Formal Op. No. 475; Bar Association of San Francisco Formal Op. No. 1996-1.)
When files are destroyed, “the attorney is obliged to use a method of destruction that will ensure no breach of confidentiality.” (Cal. State Bar Standing Com. Prof. Responsibility and Conduct, Formal Opn. No. 2001-157.) This also applies when disposing of client files stored in electronic form. (Id. at fn. 9.)
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).
