The Lawyer's Lawyer
Hoarding Closed Client Files
Q. In 25 years of practice, I've never thrown anything away. But I'm moving to a smaller office without much storage space. May I toss my closed client files?
Some states have adopted document retention rules requiring you to keep your files for five to seven years, but most do not specify. Rather than provide precise guidance, the Rules of Professional Conduct in most jurisdictions require lawyers to "take steps to the extent reasonably practicable to protect a client's interests, such as ... surrendering papers and property to which the client is entitled." Rule 1.16 allows a lawyer to "retain papers relating to the client to the extent permitted by other law," but doesn't tell us when we may throw them away.
No jurisdiction forces us to keep client files forever, but we should heed Mr. Murphy's warning to safeguard records that clients may need in the future:
▸ Cases Involving Continuing Jurisdiction - the statute of limitations won't stop a parent from seeking a modification of child support or a change of custody. Nor will it apply to injunctions which courts may modify if circumstances change. In these cases, trashing "old" evidence may hurt your client later on.No matter where you practice, the best way to avoid future problems is to state your document retention policy at the start of representation. My retainer agreements contain the following language:
In homage to Mr. Murphy, you'll want to store these records for more than "a few years." Most lawyers keep them for at least five years, while the true hoarders among us never throw a file away. Even when you do, it's important to review each file to identify any documents you may wish to hold onto even longer.
Unfortunately, every closed case leaves a legacy of paperwork for which we will never be compensated, and storage costs we will never recoup. But this is the cost of doing business as a private practitioner.