The Client File Conundrum

Since this publication is for lawyers who have gracefully served the profession for many years and may be considering retirement, a discussion about client file disposition may be relevant. Paper or “hard copy” files are what generations of lawyers have kept to date. However, advances in technology, including portable, disposable computers, the internet and cloud storage, will one day render this topic obsolete. “Good riddance,” I say, for it is a subject that causes much consternation and heartburn.

Today’s prevailing wisdom on client files is simple. When you conclude your representation, make a copy of any document in the file needed to protect you against malpractice liability. Remove your work product, and then return the original file to the client. That’s it. You have no obligation to keep a copy of the file for anyone other than you and your malpractice insurance carrier. Boy, don’t you wish you knew this a decade or two ago?! You once held onto files with the hope of return business. A growing number of lawyers, coupled with instant access to them through the click of a mouse, has rendered that model obsolete. Now you’re stuck with a glut of paper files and face the daunting task of dealing with them before you shutter your practice. In the next few pages, I will attempt to guide you through the process.

The law provides a framework for my advice. Several Rules of Professional Conduct are relevant. Prof.Cond.R. 1.1 and 1.3 discuss a lawyer’s obligation to competently and diligently practice law. If a lawyer fails to maintain and dispose of client files properly, that lawyer is not representing clients in a competent or diligent manner. It is also unlikely that a lawyer who fails to maintain a client’s file properly can keep that client reasonably informed regarding his or her representation or provide the client with documentation upon request as required by Prof.Cond.R. 1.4.

Failing to dispose of client files properly raises Prof.Cond.R. 1.6 and 1.9 issues. These rules describe a lawyer’s duty to maintain client confidences. In the only case dealing with the disposal of client files, the Supreme Court of Ohio determined that a lawyer who put client files in a public dumpster violated his clients’ confidences in violation of these rules.¹

Prof.Cond.R 1.15 is responsible for a common misunderstanding regarding the length of time a lawyer must keep a client’s file post-representation. This rule deals primarily with lawyer trust accounts. However, a client’s “property,” which includes the client’s file,² is also discussed. Under section (a), records of trust account funds and “other property” must be kept for seven years after termination. This provision has caused many lawyers to believe they must maintain client files for seven years post-representation, but this simply is not accurate. Disciplinary authorities do not interpret this provision to apply to client files; it only applies to fee agreements and trust account records as enumerated explicitly in the rule. Be advised, however, that the Board of Professional Conduct (board) is using seven years as the “default” number of years it is suggesting lawyers keep client files in its “Ethics Guide: Client File Retention.”³ The board further reminds lawyers to be mindful of an uninsured lawyer’s five-year obligation to maintain the documentation required under Prof.Cond.R. 1.4(c) when considering how long to maintain client files after termination.⁴

Prof.Cond.R. 1.16 specifically addresses a lawyer’s duty concerning a client’s file at the time of termination. Section (d) requires a terminated lawyer to promptly deliver to the client “all papers and property to which the client is entitled.” The rule then clarifies what “client papers and property” may include. Although I have stated above that you should remove “work product” when turning over a file to a client, in reality, the client must receive anything reasonably necessary to further their case or claim.⁵ While Rule 1.16 mainly contemplates a client terminating a lawyer before the conclusion of the client’s case, optional withdrawal is also covered, and the rule remains the primary source from which client file retention and destruction resources emanate.

The rules discussed above have been in effect, with minor, nonsubstantive amendments since 2007. In 2019, the board issued Advisory Opinion 2019-6. The question presented was, “Whether a lawyer has an ethical obligation to deliver a client’s file upon request of a former client?” In answering that question, the board made the critical, explicit statement that “[a] lawyer is not required by the Rules of Professional Conduct to maintain a former client’s file for a minimum period of time after termination of representation.”⁶ This statement is the reason for today’s prevailing wisdom on client files discussed above. You are not required to keep a client’s file post-representation. So don’t! After making copies of any document you need to protect against malpractice liability, deliver the original file minus unnecessary attorney work product to the client and be done with it.

Unfortunately, there are exceptions to every rule. In the remainder of the opinion, the board describes when a lawyer may need to maintain a client’s file post-representation and what steps a lawyer must undertake before destroying a file. Certain areas of practice present situations where a lawyer should consider keeping the client’s file, such as probate, estate planning, tax, criminal law, corporate formation, domestic relations and other matters involving minors. The board opines that lawyers should decide how long to retain files involving these subject matters by analyzing “whether the file will be needed to protect the interests of the former client or … may be necessary in the assertion or defense of a future claim when the applicable statutory limitations period has not expired.”⁷ A lawyer may destroy such files when they “no longer serve a useful purpose to the former client.”⁸ When addressing long-held files, Adv. Op. 2019-6 reiterates that such files belong to the clients and that a lawyer must return them upon request. If a lawyer stores a file electronically and the client cannot access the file in that format, the lawyer should provide a paper copy at the lawyer’s expense.⁹

Having discussed the relevant rules, case law and advisory opinions on client files, we arrive at the question to which everyone wants the answer: What if there is no request for a file, and it sits in storage when I’m retiring and closing my practice? The answer to this question depends on many factors, and you may receive different advice from different sources. You should consult your malpractice insurance carrier. Through your annual premium payments, you have paid for their opinion on the subject, so why not get it? Malpractice insurance carriers tend to offer conservative advice, so you might not like what they have to say. They will probably tell you that you need to go through every one of your client files before closing your practice. You must remove documents of legal significance (e.g. wills, trusts, qualified domestic relations orders, unrecorded leases or deeds, etc.). You must send a letter to each file’s owner at their last known address announcing your practice’s closing and their opportunity to obtain their file. You must then return the file to the client. For files dating back to the 1970s or 1980s, I would suggest that this advice is impractical at best. You will spend hours of your time and lots of money in postage for little success in returning files.

Returning files is the ultimate goal, however, to avoid trouble with ethics authorities, you only need to make a “reasonable effort” to return files before you destroy them.¹⁰ The board indicates that you must attempt to notify former clients of your intent to destroy their files by mailing letters to their last known address but concedes that this may be unrealistic. Social media, internet searches, conversations with known family members and placing a notice in a newspaper of general circulation are some acceptable alternatives to mailed letters.¹¹ Additionally, if you have a website, you could post notice of your impending retirement and your desire to return or destroy files. Since print media is rapidly becoming a thing of the past, posting a conspicuous notice on your website may prove more effective. Still, whatever notification tool you use, be sure to document it in the unlikely event you must prove that you made a “reasonable effort” before destroying client files.

I may have already hinted at my “real world” approach to client file disposition above. We in attorney disciplinary circles often get accused of “living in ivory towers.” Ever the pragmatist, I can only tell you what I think makes sense. Prophalactically, do two things. First, start following today’s prevailing wisdom on returning files, regardless of when you plan to retire. Every file you return now is one less you have to worry about returning at the end of your career. Second, develop a written file retention and destruction policy that you share with clients either in a written fee agreement or at some other time during the representation. It doesn’t have to be a specimen of great drafting acumen. You know your clients and your practice better than anyone. Draft a policy that makes sense knowing what you know. Think about the type of law you practice and where you practice it. Also, consider the type of documents that are in your typical client file. Explain your file retention and destruction policy to your clients and document their understanding of it with their signature or initials. If you recently developed a policy, you can still notify pre-policy clients and have them agree to it by sending them a letter or email attachment. Finally, stick to your policy! Set aside time each year to cull files from storage.

If you did not have a client file retention and destruction policy and are dealing with a mountain of old client files, you must consider your resources, clientele and practice. Where you practiced could make a difference. Big cities tend to have a more transient population, making locating clients from long ago difficult. In contrast, in rural areas where it may be common to have land pass generationally, you may be able to locate a client from 20 or 30 years ago. As previously discussed, certain practice areas may require that you retain or return legally significant documents. And because you no longer maintain an office or support staff, you may have limited resources. Unfortunately, deciding what to do with old files presents a cost-benefit conundrum. You must assess the likelihood of negative consequences (i.e. malpractice or disciplinary action) from destroying old files without your clients’ express approval.

After analyzing the factors mentioned above, start by picking a date. Using the board’s suggestion, for clients from the last seven years that you practiced, send a letter to those clients’ last known address. In the letter, advise the client of your intent to retire and destroy client files. Give clients time to respond, like 60 or 90 days. Provide a contact phone number or email and advise your clients of the time and process for retrieving files. After the expiration of the stated time, remove legally significant documents from the remaining files and set them aside. Copy or scan any documents that will protect you against malpractice liability, then destroy the files.

For files that date back more than seven years from your last date of active practice, place a notice in a newspaper of general circulation or on your website. As with the letter notice, announce your intent to retire and the date you intend to destroy client files. Give clients a reasonable amount of time to respond and provide contact information to retrieve their files. Once that time expires, you may remove legally significant documents from the remaining files and set those aside. You may copy or scan any documents you think you need for your malpractice liability. For very old files (i.e. 20 to 40 years), you may decide that destruction is more appropriate than expending your resources to review and remove or copy documents from those files. At a minimum, destruction protects client confidences, as the Supreme Court of Ohio recognized as paramount in the Shaver case.¹² Destruction is also preferable to leaving old files for your heirs or the Office of Disciplinary Counsel to handle upon your death or incapacity.

When destroying files, cross-hatch shredding or incineration are the preferred methods.¹³ If you retain a commercial destruction service, obtain a certificate of destruction for your records. A certificate of destruction may contain limited information (e.g. number of boxes and destruction date) however, it serves as evidence that you protected your clients’ confidential information should that issue arise. Keep a list of destroyed files as an additional safeguard.

As for the documents of legal significance you removed and set aside, you have choices as to their disposition. You may deposit wills with the probate court of jurisdiction. Remember, you do not need to preserve any document on file with a court or other government agency. If you have documents that are not “of record” with a court or other government agency, you may deposit them with the Office of Disciplinary Counsel. Our office will add your name to the list of attorneys for whom we store client files and documents. The list is available on the Office of Disciplinary Counsel website.

You should not leave the disposition of your client files to chance. Practice good file management. Store closed files separately from open files. Ensure office staff knows the details regarding any file organization system or method you use (e.g. alphabetically by year). Develop a succession plan containing explicit instructions for a designated successor lawyer, the attorney for your estate, or your office staff and family to follow at your death or incapacity. Include details regarding the location of keys and passwords for access to client information. Many bar associations and malpractice insurers offer succession planning resources. In 2017, the board published its “Ethics Guide: Succession Planning.”¹⁴ Consult these resources to craft a plan that ensures proper handling of your client files with the care and competence they deserve. (Note: As of Jan. 1, 2025, amendments to the Gov.Bar R. V, Sec. 4 require attorneys, upon registration for the biennium to report whether or not they have a succession plan.)

For lawyers considering retirement after decades of practice, properly disposing of client files can be a daunting task. The law and resources discussed in this article should help you decide the best solution for your circumstances. If you have questions on file disposition or other ethics issues, please contact the Office of Disciplinary Counsel at (614) 387-9700 to speak to me or the assistant disciplinary counsel on duty.

Endnotes

¹Disciplinary Counsel v. Shaver, 121.Ohio St.3d 393, 2009-Ohio-1385.

²See Prof.Cond.R 1.16(d) and Comment [8A] thereto, which indicate that a client owns the client file.

³Ohio Board of Professional Conduct, Ethics Guide: Client File Retention 3 (2016).

⁴Id.

⁵Id.

⁶Board Adv. Op. 2019-6, syllabus.

⁷Id. at 4

⁸Id.

⁹Id. at 3.

¹⁰See Ethics Guide: Client File Retention, supra, at 6.

¹¹Id.

¹²Shaver, supra, at syllabus, 2009-Ohio-1385.

¹³See Ethics Guide: Client File Retention, supra, at 6.

¹⁴Ohio Board of Professional Conduct, Ethics Guide: Succession Planning (2017).