Make a good file retention policy your first new practice of the new year

We are frequently asked “how long do I have to keep files?”  Or even more common, and sometimes more problematic, “I’m retiring and I have (a ton of) case files from old cases, they are closed, can I destroy them?”

How long you have to keep case files may depend on your practice area, and certainly on advice from your malpractice carrier, and so is the topic for another post.  Today we’ll explore the second question – what to do with old case files.

At the outset, please permit your loyal Practice 2.0 practice management advisors to remind you that we have sample fee agreements, with language relating to file management and eventual file destruction on our Practice 2.0 webpage.   You may find them here.  But now, to the maybe-good, maybe-bad news.

If you already have a file retention policy in your fee agreement or engagement letter, you have complied with any statutory duties to retain the files, and if your malpractice carrier is happy with that, you may feel free to follow it.  (We will discuss the requirement for retention of trust account records in another post – but it’s five years from the termination of the representation.)

More commonly, though, we get this question when a lawyer does not have file retention/destruction language in their fee agreement.  Now it’s time to close down their practice – for a variety of reasons from changing firms, to joining a government or non-profit agency, to retirement.  Faced with what is sometimes hundreds of closed files, the lawyer wonders whether they can shred, or otherwise destroy the files.

Sadly, the answer is that the lawyer cannot just destroy files.  Remember, files are the property of the client and in the vast majority of situations, they are entitled to the contents, including work product.  So in the absence of that language (i.e., we will retain your file for “x” amount of time after the termination of the matter and thereafter will destroy it), the lawyer is faced with the daunting prospect of making a good-faith effort to attempt to contact all of those clients to offer them the opportunity to pick up their file.  Imagine, if you will, attempting to contact clients dating back twenty, thirty or more years.

If the lawyer is unable to contact the client, after a good faith effort (generally, think diligently searching online, not necessarily retaining a private investigator to find them)that may take days or months, we believe that you are obligated to retain what is now presumptively abandoned property for the statutory period (generally three years) before you may destroy them.  For lawyers who used paper files, that may mean paying storage fees and ensuring the security of files for that period of time.  Not the kind of thing you want to think about either in a new job or while planning your retirement travels.

So, what’s the gist of this?  It’s never too late to include a file retention/destruction advisory in your fee agreement.  Look at ours on Practice 2.0 or call us at 602-340-7332 to talk about it; you can even come in to see us at the Bar offices to discuss it in person.

More new year, new practices for your practice to come  . . . .


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