It depends. In deciding whether to discard a client’s file, a lawyer should consider the nature of the client, the matter, and the documents. Louisiana Rule 1.15(a) provides as follows:
A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property. Funds shall be kept in a separate account maintained in a bank or similar institution in the state where the lawyer’s office is situated, or elsewhere with the consent of the client or third person. . . . Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation.
Furthermore, under Louisiana Civil Code Article 3496, “[a]n action by a client against an attorney for the return of papers delivered to him for purposes of a law suit is subject to a liberative prescription of three years. This prescription commences to run from the rendition of a final judgment in the law suit or the termination of the attorney-client relationship.”
Given these standards, a good rule of thumb is to keep client files for five (5) years following termination of the matter, unless there is a good reason for maintaining the file for a longer period of time.1 Such a good reason would exist if the file relates to unprescribed claims, to a minor, or if the file contains promissory notes, wills, trusts or similar “original” documents.
What is included in the “client’s file” should be broadly interpreted. According to ABA Formal Opinion 471:
A majority of jurisdictions follow what is referred to as the “entire file” approach. In those jurisdictions, at the termination of a representation, a lawyer must surrender papers and property related to the representation in the lawyer’s possession unless the lawyer establishes that a specific exception applies and that certain papers or property may be properly withheld.
See ABA Formal Op. 471 (Jul. 1, 2015); see also Restatement (Third) of the Law Governing Lawyers §46 (2000) (“On request, a lawyer must allow a client or former client to inspect and copy any document possessed by the lawyer relating to the representation, unless substantial grounds exist to refuse.”). Thus, the client’s “file” includes email messages, digital documents (such as MS Word files), hard-copy papers, and the lawyer’s work product. However, it does not include every scrap of paper and every bit of electronic information in the lawyer’s possession. Among other materials, the “file” does not include: materials that would violate a duty of nondisclosure to another person; materials containing a lawyer’s assessment of the client; materials containing information which if released could endanger the health, safety, or welfare of the client or others; and, documents reflecting only internal2 firm communications and assignments. See ABA Formal Op. 471 at 3 (Jul. 1, 2015).
As to the financial documents that a lawyer should retain for the minimum five-year period, the ABA recommends the following:
- receipt and disbursement journals containing a record of deposits to and withdrawals from client trust accounts, specifically identifying the date, source, and description of each item deposited, as well as the date, payee and purpose of each disbursement;
- ledger records for all client trust accounts showing, for each separate trust client or beneficiary, the source of all funds deposited, the names of all persons for whom the funds are or were held, the amount of such funds, the descriptions and amounts of charges or withdrawals, and the names of all persons or entities to whom such funds were disbursed;
- copies of retainer and compensation agreements with clients;
- copies of accountings to clients or third persons showing the disbursement of funds to them or on their behalf;
- copies of bills for legal fees and expenses rendered to clients;
- copies of records showing disbursements on behalf of clients;
- the physical or electronic equivalents of all checkbook registers, bank statements, records of deposit, pre-numbered canceled checks, and substitute checks provided by a financial institution;
- records of all electronic transfers from client trust accounts, including the name of the person authorizing transfer, the date of transfer, the name of the recipient and confirmation from the financial institution of the trust account number from which money was withdrawn and the date and the time the
transfer was completed;
- copies of trial balances and reconciliations of the client trust accounts maintained by the lawyer; and
- copies of those portions of client files that are reasonably related to client trust
See ABA Model Rules for Client Trust Account Records r. 1 (Aug. 9, 2010).
As to the format for document retention, the Louisiana Revised Statutes permit a lawyer to maintain copies of all client records in electronic format. After digital imaging, the lawyer “may thereafter dispose of the original record,” unless is relates to a claim or report due to the state of Louisiana. See La. Rev. Stat. § 13:3733(A). An electronically imaged document “shall be deemed to be an original record for all purposes and shall be treated as an original record in all courts or administrative agencies for the purpose of its admissibility in evidence.” See id. § 13:3733(B).3
Prior to making a decision to destroy or to electronically image client documents, a lawyer must make reasonable efforts to assure that the subject documents are eligible for destruction or imaging. In most instances, a lawyer need not review each individual document. Instead, a lawyer typically can limit the lawyer’s review to the broad categories of folders or boxes under consideration for destruction. However, the extent and nature of a lawyer’s predestruction review efforts will turn on the nature of the lawyer’s practice and the documents in question.
Finally, to avoid any confusion regarding the destruction of closed files, a lawyer should address the issue in the lawyer’s client engagement agreement. Here is some recommended language for a paperless lawyer:
Lawyer will scan and store all Client files in electronic PDF format and destroy all hard-copy (paper) files given to or received by Lawyer immediately after scanning. All files will be stored “in the cloud” using widely-used providers such as SugarSync and Dropbox. Lawyer and Client understand that there are risks to confidentiality associated with this means of data/document storage. Lawyer will store at Lawyer’s expense all relevant PDF files relating to Matter for a period of up to five (5) years following termination of Lawyer’s representation. Lawyer may thereafter destroy all of Client’s files without further notice to Client. Client may request in writing that Lawyer make available to Client or the Client’s designee any PDF files in Lawyer’s possession that have not been destroyed. Within seven (7) days of receipt of such request, Lawyer shall make electronic (not hard-copy) files available for download.
- A lawyer clearly has no duty to store permanently the files of a former client. See, e.g., Bd. Of Prof’l Resp. of the Sup. Ct. of Tn., Formal Op. 2015-F-160 (Dec. 11, 2015) (citing D.C. Bar Op. 206 (1989); ABA Informal Op. 1384 (1977)). ↩
- “Internal” firm documents prepared for administrative purposes could include documents relating to matters such as: conflicts checks and potential conflicts of interest; the client’s creditworthiness; firm personnel or staffing matters; and, ethics consultations within the firm or with outside experts. Id. at 4-6. Such documents are not part of the client’s file because they are “generated for internal use primarily for the lawyer’s own purpose in working on the client’s matters.” Id. ↩
- The ABA is in accord, advising that trust accounting records “may be maintained by electronic, photographic, or other media provided that . . . printed copies can be produced” and that the records are “readily accessible to the lawyer.” See ABA Model Rules for Client Trust Account Records r. 3 (Aug. 9, 2010). ↩