Vol. 5, No. 6, Pg. 24. The Archival Lawyer - Seeking a Sensible (and Ethical) File Retention Policy.

• Author: By Robert M. Wilcox

South Carolina Lawyer

1994.

Vol. 5, No. 6, Pg. 24.

The Archival Lawyer - Seeking a Sensible (and Ethical) File Retention Policy

24The Archival Lawyer -- Seeking a Sensible (and Ethical) File Retention PolicyBy Robert M. WilcoxThe era of compact electronic information storage has not matured soon enough for lawyers who face ever-growing stacks of paper files on client matters long completed and even forgotten.

The accumulation of file boxes creates more than mere clutter. As the number of retired files escalates, storage costs also increase, with more and more valuable space used to store boxes that produce no income and are not likely to be needed again.

No simple rule ofprofessional conduct permits a law firm to discard old files safely after a fixed passage of time. Rule 1.16 requires that at the end of a representation a lawyer surrender "papers and property to which the client is entitled," but the Rule offers no guidance for the disposition of files that the former client has not claimed. Rule 1.15, which imposes a general duty on lawyers to safeguard client property held by the lawyer, offers no clearer guidance whether that duty extends indefinitely in time.

Responding to a 1992 inquiry about the extent of a lawyer's ethical obligation to retain old files, the South Carolina Bar Ethics Advisory Committee was able to conclude only that a lawyer is subject to a general duty not to discard a file "until such time as it is reasonable to believe that [its] disposal will not prejudice the rights of the client." S.C. Bar Ethics Adv. Op. 92-19 (August 1992).

The lack of any clear safe harbor has caused some cautious lawyers to retain all their old files indefinitely, rather than risk civil or even disciplinary exposure for causing some unforeseen client prejudice by discarding the files. Adding to the incentive for a cautious lawyer to retain all old files is the absence of a statute of limitations on the filing of a disciplinary grievance against a lawyer.

An archival policy of file retention, however, may be an unaffordable luxury for many law firms facing limited space and economic resources. These firms need to develop a sensible file retention policy that will allow the eventual disposal of at least some files while minimizing the risk of any consequent prejudice to the lawyer or client.

Step 1: Notify the Client; Obtain...