Talking Trash - Recycled
Articles from The Massachusetts Focus
Newsletter of Stewart Title Guaranty Company, Massachusetts Offices
Summer 2003, Volume 2, Number 3
Talking Trash — Recycled
by Daniel C. Crane, Massachusetts Bar Counsel
"How long do I have to keep those closed client files stored in the attic of my garage?" A lawyer in fear of an imminent collapse of the garage rafters recently posed this question to bar counsel. Some of the boxes of closed files had been in that attic for years. The lawyer was planning to start to dump the oldest of the files in the town recycling bin each week to lighten the load for the garage. This plan might keep the garage standing, but it could create a new problem with the lawyer's former clients or bar counsel.
A lawyer who is entrusted with the property of a client has the following obligations with respect to its disposition: (1) valuable client property must be promptly delivered to the former client or safeguarded indefinitely; (2) complete records of the receipt, maintenance, and disposition of [clients'] funds and other property must be kept from the time of receipt to the time of final distribution and preserved for a period of six years after termination of the representation, Mass. R. Prof. C. 1.15(a), and (3) other client property may, based on the client's direction, be delivered to the former client, stored, or destroyed.
In light of questions and comments received on this subject, bar counsel has reviewed and revised its position. The views expressed in this article supersede the guidance furnished in "Talking Trash," which appeared in [the October, 1998 edition of MBA Lawyer's Journal.]
Valuable client property that must be delivered to the client includes tangible personal property such as jewelry, antiques, art objects, collections or other items that are likely to be of special value to the client. A review of closed files might disclose family heirlooms or photographs entrusted to the lawyer. Documents such as original notes or securities have unique value to the client and must also be delivered. If the lawyer cannot locate the client to return these items, they must be safeguarded indefinitely.
Original wills and settlement agreements may also turn up in old files. These items should be returned to the client, or, if the client so directs and the lawyer agrees, stored indefinitely. A lawyer who discovers an unrecorded mortgage discharge must take prompt steps to rectify the oversight. Estate planning and will preparation files for clients who are still alive should probably be retained in their entirety regardless of how old the file is. Records of the receipt, maintenance, disposition, and final distribution of client or trust funds or other valuable client property must be retained for six years after termination of the representation. Mass.R. Prof. C. 1.15(a). These records must be readily accessible to the lawyer and in a form suitable for audit.
In addition to Mass. R. Prof. C. 1.15, other ethical rules may require a lawyer to retain a client's file for an appropriate time after the termination of representation. These rules, Mass. R. Prof. C. 1.2. 1.3. and 1.16. do not specify a particular period of retention. Mass. R. Prof. C. 1.2 and 1.3 provide that a lawyer has a duty to act with diligence and to take steps to the extent practicable to protect the interests of the client. Retaining a file may be necessary to fulfill these obligations. Mass. R. Prof. C. 1.16(d) provides that the lawyer must deliver the file within a reasonable time to the client upon request. Because the file belongs to the client, the client should be given notice of and an opportunity to object to the lawyer's intention to dispose of any portion of the file.
It is good practice, therefore, for the lawyer to give adequate notice of the firm's file retention policy at the outset of the representation in the retainer agreement and by written notice at the end of the representation. It has been suggested that the client ought to have six months to object to the lawyer's proposed disposition of the file. Wisc. St. Bar Comm. on Prof. Ethics, Formal Op. E-98-1. Before notice is given, the lawyer should have reviewed the file and identified its contents so that valuable property can be returned to the client and steps taken to correct any oversights discovered in the file review.
After reasonable notice to the client of the lawyer's intention to dispose of all or selected parts of the client's closed file, a lawyer may dispose of those parts of the closed file which do not constitute "records of the receipt, maintenance, and disposition of [clients'] funds and other property" and are likely to have no continuing value or future use to protect the client's interests. Examples include copies of pleadings, correspondence, and other work papers. If the client has not paid for transcripts or other items, the lawyer may withhold production of those items until reimbursed for out-of-pocket expenses. The client's response to the notice from the lawyer may be that the client wants the lawyer to deliver the file to the client or store the file for some period of time. When the quantities of file material are large or the location that the client wants the materials delivered to is remote, the lawyer has the right to request reasonable reimbursement for the expense unless the ethical rules require the lawyer to refrain from disposing of the materials after the termination of the representation or to return the file after request.
Although lawyers may have the right to destroy all or part of closed client files after notice to the client, there may be reasons not to do so. The lawyer may wish to retain the file to facilitate other representations involving similar matters or to assist the lawyer if the client were to allege malpractice or professional misconduct. The length of time that a lawyer retains closed client files for these purposes is a decision for the lawyer or firm and not the ethical rules unless closed client files are or may be relevant to an investigation or proceeding involving allegations of malpractice or professional misconduct by the lawyer or misconduct by the client. The lawyer may not destroy information for the purpose of hindering or obstructing such an investigation or proceeding. Mass. R. Prof. C. 3.4(a), 8.4(c) and (d).
A lawyer must take care to maintain the client's confidentiality, in making disposition of materials from closed files. Mass. R. Prof. C. 1.6 (a) By example, a client's financial or medical records should not be disposed so that they are available for reading at the lawyer's curb on trash day or at the landfill or recycling, center. Depending on the content of the materials, it may be necessary for the lawyer to shred or otherwise destroy the materials by whatever appropriate means the lawyer may arrange to preserve the client's confidentiality.
Prompt review of the file upon termination of the representation facilitates the task of returning client property, correcting oversights, and notifying clients of proposed disposition of portions of the file. For those old files in the garage, the lawyer will have to do a bit more than planned to save the garage from collapsing.
Mr. Crane is associated with the Massachusetts Office of Bar Counsel. His article has been reproduced here with permission. This article and other articles on ethical issues for lawyers can be found on the Bar Counsel's web site www.state.ma.us/obcbbo.