Old files
Recently, the question was raised as to how much time clients' old files must be retained ... The long and short is, it depends.
There is a duty of safe-keeping for original documents. They can never be destroyed. Your best bet is to make arrangements for the client to retrieve these documents.
Another general mantra is that files can be destroyed when
- it's reasonable under the circumstances to do so
- your jurisdiction has a definitive time provision, such as 10 years (few states do)
- your client agrees to a destruction protocol in your engagement agreement
Here are some provisions to consider for the minimum time frame
- passage of time for filing a malpractice action
- passage of time for lawyer misconduct (is there such a statute of limitations?)
- equal time to maintain client trust account documents
- time equal to corporate and tax records
Bottom line, there generally is no minimum time provided for in the rules of general conduct or in the general rules concerning corporate governance. Lawyers are, generally, stuck with maintaining the clients' files unless the can find the clients and persuade them to retrieve their material and / or create protocols in the initial agreement that the client accepts and signs.
Oh, and what happens to the lawyer who retires, sells his practice ... or worse, dies in his boots? How can the estate of the lawyer protect his/her heirs? What can the lawyer do in advance to protect those loved ones who follow him, seeking to clean up and close his practice?
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Something certainly needs to be done with old files. I think the biggest problem is that many lawyers don't want to deal with the issue, so they let it continue to grow.
When you first start out as a lawyer, you only have so many files, and those are easy to organize, so you don't really need an in-depth system. But before you know it, you've been practicing law for twenty years and your files are overflowing, stacked up against a wall, and nearly impossible to navigate. At that point, you certainly don't want to go through everything, so it's easier to just keep putting it off with the plan to get to it later.
The earlier you develop a system for handling client files, the better--even if you don't currently have need for it. You won't believe how quickly it will become a lifesaver.
Something certainly needs to be done with old files. I think the biggest problem is that many lawyers don't want to deal with the issue, so they let it continue to grow.
When you first start out as a lawyer, you only have so many files, and those are easy to organize, so you don't really need an in-depth system. But before you know it, you've been practicing law for twenty years and your files are overflowing, stacked up against a wall, and nearly impossible to navigate. At that point, you certainly don't want to go through everything, so it's easier to just keep putting it off with the plan to get to it later.
The earlier you develop a system for handling client files, the better--even if you don't currently have need for it. You won't believe how quickly it will become a lifesaver.
I have the following provision in my retainer agreement:
"My policy with regard to documents at the conclusion of a matter is to maintain documents in storage for seven (7) years. At the conclusion of that period, all documents in your file will be destroyed and discarded without further review by me or notice to you. Accordingly, if there are any documents or papers from your file that you wish to retain following the conclusion of your matter, it will be necessary for you to so advise me so that the documents are not destroyed."
Any thoughts on whether this gives me the green light to destroy the file after seven years from when I close the case? I do family law, and in some instances motions to modify custody or support are filed more than seven years after the case is originally concluded. When that happens, however, there's not much in the "old" file that will help with respect to the motion to modify except the Judgment, which can easily be obtained from the court.
I'm tired of seeing my storage bill go up each year as I put more and more files into storage. I thought of scanning the files, but I'm not sure that would be cost-effective.
How do other lawyers (family law attorneys in particular) handle this issue? What, if anything, does the State Bar of CA say about this?