To Shred or Not to Shred? What to Do When Maintaining Client Files is the Question
by Charles "Chip" Mortimer
o rule of professional conduct expressly requires a lawyer to maintain a client file1 but it would be difficult to envision the practice of law without them.
Rule 1.1 of the Colorado Rules of Professional Conduct requires representation to be "competent," to be carried out with the legal knowledge, skill, thoroughness, and preparation necessary for the representation. A lawyer could not represent a client competently without maintaining a file, but the rules are silent concerning the contents and format of the file, or the medium in which the file is kept. The contents, organization, and storage of the file must enable the lawyer to represent clients competently, diligently, confidentially, and loyally, and to communicate with the client as may be necessary. These duties continue from formation of the attorney-client relationship through, and after, termination of the representation.
What is the Client File and Who Owns It?
The file is the property of the client. Rule 1.15 requires a lawyer to safeguard client property, including client files.
The client’s file consists of all the material gathered by the lawyer during the course of the representation, with two exceptions.2 First, material borrowed from other client files should not be included. Second, the lawyer’s personal work product, such as billing and time records and diary or calendar entries, are not a part of the client file. Notes, memoranda, and research concerning the client’s case are part of the client file.
Rule 1.16(d) requires an attorney to protect the interests of the client at the time the representation terminates. Protection of the client’s interests includes "surrender of papers and property to which the client is entitled."3
Rule 1.16A: What Happens to the File When Representation Ends?
In 2011, the Colorado Supreme Court adopted Rule 1.16A, which sets forth specific ways in which a client’s interests in his or her file may be protected at termination. Rule 1.16A provides the following options to a lawyer in a civil case:
With certain exceptions, files may be returned in paper or electronic format. The file must be accessible to the client, and certain original documents with inherent value, such as wills, deeds, marital agreements, and stock certificates, must remain in paper. They are valuable client property and should never be destroyed.5
A lawyer may not destroy a file if pending or threatened legal proceedings that relate to the matter described in the file are known to the lawyer. Further, a lawyer may never destroy records when there’s an obligation to retain the records pursuant to a law, court order, or rule of a tribunal. Examples of the latter include original signatures on e-filed documents and contingent fee agreements. Of course, if the file is destroyed after a "30-day" notice is provided to the client, then that notice should be retained.
Rule 1.16A also provides specific direction on how long criminal files must be retained, depending on the charge and disposition in the case.
Document or Digital?
Just as a lawyer may maintain a file in paper or electronic format during the representation, the lawyer also may store the file in paper or electronic format. Each has limitations and benefits.
Paper storage is costly and cumbersome, but simple. Electronic storage on a CD, thumb drive, or removable hard drive may require additional scanning if the file was originally maintained in paper format. If the paper file is then shredded, a careful eye must oversee the process to ensure that original documents such as marital agreements or stock certificates are not destroyed inadvertently.
Storage in "the cloud" is another alternative. However, lawyers must take measures to ensure that the service they choose is secure, confidential, and always accessible. Recent reports of hacking make cloud storage a questionable alternative. Among other things, lawyers will want to ask: What security measures are in place? Who owns the data stored on the cloud? What will happen to the client’s file if a monthly fee is not paid? Is the data always available, or are there "down times" when I can’t gain access?
Consultation with one’s professional liability insurer is suggested.
How to Destroy the File
Typically, paper files should be shredded. Removable hard drives and other media on which client data is stored must be physically destroyed to the point that the data can no longer be accessed. Backed-up data also must be destroyed. Files stored in the cloud must be completely eliminated. An attorney may retain a copy of the file for his or her own purposes but is responsible for the expense and must make sure the file is secure.
Destruction of a file does not include destruction of an attorney’s financial records related to the representation, such as billing records, client ledgers, or bank records. Those records must be maintained for a period of seven years.6
Finally, firms must make arrangements for the disposition of files in the event of dissolution or the departure of a lawyer.7 D
Chip Mortimer is deputy regulation counsel in the Litigation Division of the Office of Attorney Regulation. There he toils over a variety of legal ethics issues, some of which are even more thrilling than file retention. Mortimer will happily field your ethics questions at (303) 928-7783 or firstname.lastname@example.org.
1 Colo. RPC 1.16A assumes they exist.
2 CBA Formal Ethics Opinion 104, “Surrender of papers to the client upon termination of the representation.” Available at bit.ly/Z98KUw.
3 The rule allows for the assertion of a retaining lien pursuant to C.R.S. §12-5-120. See CBA Formal Ethics Opinion 82, “Assertion
4 This option can be satisfied with a written file retention policy that complies with the rule and that is delivered in a fee agreement or other writing at least 30 days prior to destruction.
5 No rule requires the lawyer to keep originals. The safest ethical course is to retain copies and return originals at the conclusion of the representation.
6 Colo. R.P.C. 1.15(j)-(m).
7 Colo. R.P.C. 1.15(l).