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Rumor has it that the Utah State Bar provides storage for client files when an attorney leaves the practice of law. It doesn't. Nevertheless, I've answered a surprising number of inquiries
about this on the Office of Professional Conduct's Ethics Hotline, and when I ask people where they got that idea, the answer is always that the caller either heard or assumed this was a
service the Bar provides its members. Even more commonly, callers want to know how long an attorney must keep client files. This article discusses a lawyer's enduring ethical
responsibilities to clients. It also identifies important considerations for developing a disaster plan that will protect clients and at the same time make things easier for the people
who survive you or take care of you in the event of your death or disability. Many of these ideas serve as well to protect you and your clients when you retire.
Lawyers often counsel others to give some advance thought to protecting their families by having an estate plan and making arrangements for end-of-life care. This advice is just as sound
for attorneys vis-ˆ-vis protecting clients and former clients in the event of the attorney's retirement, disability, or death-especially those in solo practice. But even attorneys who
have the safety net afforded by a firm should be familiar with, and periodically review, the firm's long-term plans for client files. The OPC frequently receives calls in the aftermath of
a lawyer's death or disability, usually from the attorney's staff or family, when it is far more complicated to resolve the problems and protect client interests than it would have been
for the attorney to devise and implement a long-term plan.
Important considerations are the attorney's enduring duty to maintain confidentiality of client information - even after the attorney/ client relationship has ended - and to return client
property.1 Moreover, the duty survives the end of the relationship, and an attorney must "take steps to the extent reasonably practicable to protect a client's interests." See Rule 1.16(d) (Declining or Terminating Representation). The rules also require an attorney to provide, upon request, the client's file and otherwise to protect a client's interests upon termination of the representation "to the extent reasonably practicable," and to preserve client property "for a period of five years after termination of the representation." See Rule 1.16(d) (Declining or Terminating Representation); Rule 1.15(b) (Safekeeping Property). A prudent attorney would do several things to protect a client's interests, avoid burdening colleagues, friends, and family, and protect themselves from Bar complaints and malpractice actions.
First, develop a plan for notifying your clients if you are suddenly unable to continue representing them. Notification should include information concerning the urgency of seeking new
counsel for active cases, the availability of the file in both active and inactive cases, and the designation of another lawyer who will assume responsibility not for the representation,
but for custody of the file, until the client provides written directions concerning the disposition of the file.
This depends upon you having an agreement with another lawyer to fill the void if necessary. Attorneys with law partners have less to worry about here. Anyone who does not have a law
partner might consider entering reciprocal agreements with trusted colleagues who can take custody of the files, inventory them, and see to it that they reach the appropriate clients,
former clients, or substitute counsel.2 You can lighten the burden of this request by maintaining your files, both active and inactive, in good order, and keeping a running list of your cases with all the relevant client information included. Another essential is that your trust account records and time-keeping records are reasonably up-to-date. The attorney you designate to assist in the event of calamity should know where your books are kept, know the bank and account numbers for your trust and operating accounts, and know where your inactive files are stored. If you have staff, give them written instructions about whom to contact and how to assist; if you don't have staff, provide the same written instructions to a responsible member of your family, or to a close friend.
Second, discuss with your client the end of the relationship at the beginning of the relationship. Talk about what happens to the papers and other things in the client file. The OPC
suggests that attorneys routinely give clients copies of every paper filed in court or having other significance to the case as it progresses, but at the termination of the representation
the client is entitled upon request to the original file, minus the attorney's notes.3 The lawyer may keep a copy of the file, but must do so at the lawyer's own expense. See Rule 1.16(d) (Declining or Terminating Representation). One thing an attorney might agree to do at the inception of the representation, is simply transfer the entire file to the client when the matter is closed. If you put this in the engagement agreement, and of course discuss it with the client, this resolves any ambiguity about who will get what at the end of the relationship.
It's also a good idea to let the client know, in writing, what will happen to the file if there's a calamity. Discuss the ramifications, disclose your plan, answer their questions, and
explain how to proceed if you are suddenly unable to continue representing them while the case is active. Explain that the attorney you have designated to assist with this will not
undertake the client's representation, but will assist them in getting the file and the refund of any unearned fees. Assure them that even in your absence, you have made arrangements to
protect their interests. Explain it to them, but also give it to them in writing, preferably as part of the retainer agreement, so that the client will have something to refer to later.
And don't forget to obtain their consent.4
The suggestion that an attorney transfer the entire file to the client has the virtue of avoiding the long-term storage problem. But transferring the entire file leaves the attorney
exposed if there are malpractice actions and disciplinary complaints. In other words, although it is the least expensive alternative, you take this course at some peril. That's why we
suggest keeping a copy of the entire file for the period set by statute for various types of legal action against the attorney. If you do this, you'll at least have what you need in the
event that there are inquiries or lawsuits arising from the work you did. It has the virtue of thoroughly protecting the client, as well as the attorney. The suggestion is expensive in
two respects, however. The first is obvious: it costs a lot to photocopy an entire file. Moreover, long-term storage is expensive.
An intermediate alternative is to transfer the original file to the client, retaining all of your original notes and copies of anything that can't easily be obtained from court or another
entity that retains records for a lengthy period. In that manner, the client is protected, you are reasonably protected, and the file could be reconstructed if necessary. At the same
time, you have significantly reduced the volume of the file, thereby minimizing necessary storage space. An annual review of what's in storage would allow you to evaluate which files can
be further reduced or destroyed.
What if you can't transfer the file, or elect not to do so unless asked? The answer is that the length of time you must retain such files depends upon what's in them. Here, you or the
attorney you have designated (with the client's consent) must use sound judgment based on the evaluation of many factors. The Rules of Professional Conduct provide that property of
clients "shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation." Rule 1.15(a) (Safekeeping Property). This means
that after a reasonable effort to locate the client to return the property, you must continue to preserve it for the period designated in the rule. Is there a document in the file with
independent legal significance that is of vital importance to the client? If so, you may have a duty to indefinitely maintain it until a court gives you permission to destroy it. As the
pertinent Ethics Advisory Opinion concludes, "There is no specific time period governing retention of a client's file. The guiding principles are the ultimate return of the portions
of the file that are the client's property under Rule 1.16 and the reasonable protection of the client's foreseeable legal interests." Utah State Bar Ethics Advisory Op. Comm., Op.
No. 96-02.
The OPC urges attorneys to consider these issues before there's a life-changing event, to review the Rules of Professional Conduct, and to exercise good judgment concerning how to proceed.
If you're in solo practice, consider some sort of reciprocal arrangement with a colleague. Don't assume that the Bar will serve as a repository for client files(!), but feel free to call
the Ethics Hotline (531-9110) to discuss your plan with an OPC attorney.
Footnotes
1.
Various Rules of Professional Conduct that warrant review as you consider these problems are Rule 1.6 (Confidentiality of Information), Rule 1.15 (Safekeeping Property), Rule 1.16 (Declining or Terminating Representation), and Rule 1.17 (Sale of Law Practice). Other sources of information are The Lawyer's Guide to Retirement: Strategies for Attorneys and Their Clients, published by the Senior Lawyers Division of the American Bar Association, ABA Formal Opinion 92-369 (Disposition of Deceased Sole Practitioners' Client Files and Property), and Utah State Bar Ethics Advisory Opinion Committee, Opinion No. 96-02.
2. See Rule 27, Rules of Lawyer Discipline and Disability (Appointment of Trustee to Protect Clients' Interest When Lawyer Disappears, Dies, Is Suspended or Disbarred, or Is Transferred to Disability Status).
3.
See the annotation captioned "Client file" following Rule 1.16 (Declining or Terminating Representation) for a discussion of what is and is not the client file. For example, "[t]he lawyer may retain items such as depositions, experts' reports and other items for which the attorney has paid costs or is obligated to pay costs and for which the client has not reimbursed the attorney."
4. If the client consents after consultation, the rules permit you to disclose information relating to the representation. See Rule 1.6(a) (Confidentiality of Information).
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