Ethics in Brief: The File Retention Puzzle
By: David C. Carr
One of the more vexing puzzles in legal ethics is the seemingly straightforward question: How long do I keep the client’s file after the representation ends? There is no bright-line rule. There is no rule because of the varieties of legal representation and the differing needs of those varieties of clients. Some areas of litigation, like unlawful detainer practice, involve relatively swift proceedings and a great degree of finality, veritable mayflies in the legal ecosystem. Other areas of practice include issues and proceedings that can span years and even decades, like criminal defense, estates and probate practice, and sometimes marital dissolution practice where the client’s need for the file may be indefinite. The starting point for solving this puzzle is recognition that the client file is the property of the client and file retention practices are part of the fiduciary duty to safeguard client property that the lawyer owes the client.
Now out for public comment is a new proposed ethics opinion from the State Bar’s Committee on Professional Responsibility and Conduct, proposed formal ethics opinion 19-0004. Calling it “new’ isn’t exactly accurate. As you can see from the number, it has been kicking around for six years, long enough for me to remember discussing it when I was a member of the Committee, ages ago. It has already gone through one round of public comment, and now, following COPRAC’s practice when significant changes have been made, it is out for additional public comment. The importance of guidance on his issue is underscored by the unusual request at the end of the notice requesting public comment:
COPRAC especially welcomes comments from solo practitioners, small firm attorneys, and criminal law practitioners whose practical experiences and perspectives are invaluable in understanding how these proposals affect diverse legal practice settings.
Adding to the emotional energy surrounding the file retention problem is the cost to small firms and solo lawyers to maintain client files after the end of representation. Even the maintenance of electronic files entails costs, and no office is entirely paper-free. Large law firms also bear this cost, and with more clients and often more complex matters, the price is hardly trivial to them.
Part of the impetus for this new opinion is dissatisfaction with prior ethical opinions on the same subject. COPRAC has previously addressed it in formal opinion 2001-157 and touched on it in 1994-134. Local bar associations have weighed in with BASF Formal Opinion no. 1996-1, LACBA Formal Opinions nos. 420 (1983) & 475 (1994).) LACBA suggested a five-year guideline, by analogy with the duty to retain client trust account records five years from the date of final distribution of client funds, now found in California Rule of Professional Conduct 1.15(d)(5).
Another part was the amendment of California Penal Code section 1054.9, with new subdivision (g) on January 1, 2019, with a new file retention mandate for a criminal defendant’s access to post-conviction discovery, required to maintain a copy of a former client’s files “for the term of that client’s imprisonment” in cases where the defendant is convicted of a serious or violent felony and sentenced to 15 years or more.
Formal opinion 2001-157 concluded that:
As to original papers and other property received from a former client, including estate planning and other signed, original documents delivered under Probate Code section 710, the attorney’s duties are governed by the law relating to deposits (bailments) or by the Probate Code. With respect to other “client papers and property” to which the former client is entitled under rule 3-700, absent a previous agreement, the attorney has an obligation to make reasonable efforts to obtain the former client’s consent to any disposition that would prevent the former client’s taking possession of the items. If, after reasonable efforts, the attorney is unable to locate the former client or obtain instructions, the attorney may destroy the items unless he or she has reason to believe (1) that preservation of the items is required by law, or (2) that destruction of the items would cause prejudice to the client, i.e., that the items are reasonably necessary to the client’s legal representation. Since the “client papers and property” to which the former client is entitled may include a variety of items, the attorney may have an obligation to examine the file contents before the file is destroyed. No specific time period for the retention of a particular item can be specified. Files in criminal matters should not be destroyed without the former client’s consent while the former client is alive.
Emphasis added. This opinion brought home the importance of having a file retention agreement with the client at the beginning of the representation. Without it, the attorney must make at least reasonable efforts to contact the client before destroying the file and must examine the file to determine if there are items that cannot be destroyed without prejudicing the client. This might be a Herculean task if there are many files.
One issue not fully addressed by the opinion is the content of the file retention agreement. This must be given some thought. A file retention policy that allows for the destruction of the file too soon may prejudice the client if there is any chance that the destruction of the materials in the file may prejudice the client. I have seen file retention agreements that provide for a 30-day period; this is almost certainly much too short. The client has a right to the file under Rule of Professional Conduct 1.16 “promptly” on request after the representation ends, but that request may and often does occur some time after the representation ends. Moreover, the lawyer will need a copy of the client’s file for defense if the client brings a legal malpractice action or a State Bar complaint, something that can occur years after the representation ends. For a lot of reasons, the five-year period makes sense, especially when the items can be preserved in electronic format, as the new opinion makes clear.
New proposed opinion 19-0001 builds on 2001-157 and repeats its main point, with additional guidance on retention of electronic files:
In civil matters, absent an agreement to the contrary, other client materials and property may only be destroyed after the lawyer uses reasonable means to notify the client of their intended destruction and gives the client a reasonable time to respond. If a client cannot be located or fails to respond to reasonable notice of intended destruction of the file, the lawyer may destroy items whose retention is not required by law and is not necessary to avoid reasonably foreseeable prejudice to the client. Items that the lawyer believes are reasonably necessary to the representation may be preserved in electronic form only, unless the lawyer believes the loss of physical copies will prejudice the rights of the client.
The new proposed opinion then addresses the particular problem presented by criminal files:
In closed criminal matters, absent an agreement to the contrary, client files should not be destroyed without a client’s express consent while the client is alive. California Penal Code section 1054.9 requires trial counsel to retain a copy of a client’s files for the term of imprisonment where the client is convicted of a serious or violent felony resulting in a sentence of 15 years or more (Penal Code §1054.9(g)). Section 1054.9, however, concerns a criminal defendant’s access to discovery materials post-conviction in certain cases and does not address or govern a lawyer’s ethical obligations with respect to closed client files. Because files relating to criminal matters may have future vitality even without a conviction, and even after judgment, sentence, and appeals, absent a contrary agreement or client consent, a lawyer should retain the files for the life of the client. The contents of the closed files in criminal matters may be retained in electronic form if every item is digitally copied and preserved, unless retention of the physical item is required by law or the item, by its nature, requires preservation in physical form, i.e., physical evidence.
Emphasis added. This recommendation is undoubtedly going to be the source of critical public comment by criminal defense lawyers, given the prospect of retaining criminal defense files indefinitely.
Public comment is due by May 27, 2025, 11:59 p.m. and should be given through the public comment link at: https://www.calbar.ca.gov/About-Us/Our-Mission/Protecting-the-Public/Public-Comment/Public-Comment-Archives/2025-Public-Comment/Proposed-Formal-Opinion-Interim-No-19-0004-Client-File-Release-and-Retention-Duties
