Office of Bar Counsel, 1019 WYBJ, Vol. 42 No. 6. 12

• Author: Mark W. Gifford, J.
• Position: Vol. 42 6 Pg. 12

Office of Bar Counsel

Vol. 42 No. 6 Pg. 12

Wyoming Bar Journal

October, 2019

Mark W. Gifford, J.

Wyoming’s New File Retention Rule: What You Need to Know

Effective September 1, 2019, Wyoming joined a growing number of states who have adopted a client file retention rule. Te new rule is Rule 1.15A of the Wyoming Rules of Professional Conduct.

Te rule defines a “client’s file” as consisting of the following physically and electronically stored materials: 1. all papers, documents, and other materials, whether in physical or electronic form, that the client supplied to the lawyer;

2. all correspondence relating to the matter, whether in physical or electronic form;

3. all pleadings and other papers filed with or by the court, administrative tribunal, arbitrator or mediator or served by or upon any party relevant to the client’s claims or defenses;

4. all investigatory or discovery documents, including but not limited to medical records, photographs, tapes, disks, investigative reports, expert reports, depositions, and demonstrative evidence; and

5. all intrinsically valuable documents of the client.[^1]

As a general rule, a client’s file must be retained until five years after completion of the representation unless the client agrees in writing to an alternative arrangement.[^2] Tis means that a lawyer is free to include a different retention period in engagement letters, subject to a few exceptions discussed below. Te exceptions to this general, five-year retention rule relate to “intrinsically valuable” documents, certain criminal matters and matters involving a client who is a minor.

However, the rule specifically prohibits a lawyer from destroying a client’s file where the lawyer knows or reasonably should know that: (1) a lawsuit or other legal claim related to the client matter is pending or reasonably anticipated; (2) a criminal or other governmental investigation related to the client matter is pending or reasonably anticipated; or (3) a disciplinary investigation or proceeding related to the client matter or a claim before the Client Protection Fund Committee is pending or reasonably anticipated.[3]

What are “intrinsically valuable” documents?

Te rule defines “intrinsically valuable” documents as those constituting trust property belonging to the client, which must be safeguarded as required by Rule 1.15, as well as documents having “legal, operative, personal, historical or other significance in themselves, including wills, trusts and other executed estate planning documents, deeds, securities, negotiable instruments, and official corporate or other records.”[^4] Documents fitting this...