Posted by: johnocunningham | July 17, 2016

Client Communications: Duties After the Representation Ends

I recently reviewed an article on the subject of ethical considerations and professional obligations involved in law firm decisions to close or destroy old files containing communications and important information related to client matters. This article presented numerous issues that inspired me to research the topic and write a blog post of my own.

Lawyers have a special relationship with clients that is more than commercial, and therefore, requires careful consideration with regard to any decision that involves client communications. But the lines of professional responsibility with respect to retention or destruction of client materials is not so clear. In fact, the various state bar associations do not even agree on whether it is the lawyer or the client who owns the client files.

Some states have provided some degree of clarity by rule, while others have done so only by a stream of ethical opinions that touch upon issues involving disposition of client files.

The model rules and opinions of the ABA seem to offer some guidance to the states as follows:

  1. Unless a client consents, a lawyer or firm should not destroy any items that clearly belong to the client, by rule or by contract.
  2. A lawyer should be careful not to destroy information that may still be necessary or useful in the assertion or defense of a client’s position in a matter for which the applicable statutory period of limitations has not expired.
  3. A lawyer should take care to preserve accurate and complete records regarding receipt and disbursement of funds indefinitely.
  4. In disposing of any file or communications, a lawyer must take special care to protect client confidentiality, privilege or property rights.
  5. A lawyer should preserve an index or identification of files that have been destroyed or discarded.

Some states do impose a minimum period of time for which client files and communications must be preserved, some states impose special obligations with respect to signed original contracts or key documents, and some states allow for lawyers and clients – to some extent – to make their own agreements with respect to preservation, destruction or possession of client communications and documents.

In any event, lawyers are wise to check the professional rules of their own jurisdictions, as well as the opinions of their state ethics offices. They should also carefully draft their file retention policies and publish them to clients in all retainer contracts. Firms should also take a uniform and considered approach to when and how client data, documents and communications will be turned over to the client or destroyed.

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