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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