Vermont Bar Journal
Summer 2007 - #6.
Running Out of Space? Obligations and Suggestions Regarding Closed Client Files
THE VERMONT BAR JOURNAL SUMMER 2007
Running Out of Space? Obligations and Suggestions Regarding Closed Client Filesby Wendy S. Collins, Esq.
As lawyers retire, consolidate offices, downsize, or just run out of room, I am often asked, "How much longer do I have to keep these files?" It would seem as though this would be a simple question to answer, but, as is often the case in ethics, it is not. There is only one Vermont Rule of Professional Conduct that specifies how long a record of anything must be kept. Rule 1.15(b) states, in pertinent part: "Complete records of such [trust] account funds and other property shall be kept by the lawyer and shall be preserved for a period of six years after termination of the representation." This six-year rule applies only to accounting records, not client files.
It appears that there is no other legal guidance on this subject in Vermont save Vermont Advisory Opinion 97-08, issued by the Vermont Bar Association Professional Responsibility Committee in 1997.(fn1) It is very helpful and recommended reading. In researching the law of other states, I found that similar bar association advisory opinions are based largely upon ABA Informal Opinion 1384 issued in March 1977.(fn2) Despite its age, this ABA opinion remains the seminal authority on file destruction, and is worth revisiting.
ABA Informal Opinion 1384 sets forth eight factors that a lawyer should consider before making any decision to destroy a client file. Briefly summarized, they are:
1. return client property, particularly originals; 2. retain anything necessary for your own defense; 3. retain what the client expects you to preserve; 4. make decisions based on content, not just age; 5. preserve accounting records(fn3); 6. protect confidentiality when destroying documents; 7. screen all files before destroying their contents; and 8. keep an index of the files destroyed.(fn4)
Vermont Advisory Ethics Opinion 97-08 adds two more factors: 9. heed government imposed rules; and 10. keep administration of estate records indefinitely.(fn5)
The opinion warns that there may also be applicable state statutes to consider or rules of the malpractice carrier that should be ascertained. Federal rules and laws should not be overlooked in such categories as bankruptcy, federal taxation, and environmental protection laws. Any lawyer familiar with government practice knows this is a daunting task.
These are broad guidelines and do not give the lawyer a specific time period. Many lawyers simply apply the six-year limit of Rule 1.15(b) by analogy to all records--including case files--and are done with it.
Blindly applying a six-year rule to all client files, however, without consideration of the content of the files, can be dangerous. Six years might not be enough to protect the interests of both the lawyer and the client. Instead, let file content dictate when it is time to destroy a closed file. What material is retained is as important as how long it is retained.
Before turning to guidelines that may assist in valuing various documents, the lawyer should be aware of two other relevant rules: VRPC rules 1.16(d) and 1.6(a). Rule 1.16(fn6) advises that at the end of the representation, the lawyer must surrender all papers and property to which the client is entitled.(fn7) The original file belongs to the client, not the attorney.(fn8) Turning the client file over to the client without more, however, is generally not advisable. Many lawyers routinely make a...